Republican also-ran Michele Bachmann finally decided to pick on someone her own size, and started a serious policy debate with high schoolers over gay marriage. Discussing her outright opposition to the practice, Bachmann calmly explained that there’s no inequality issue in denying gay couples this basic human right, because gay and straight Americans are both entitled to marry someone of the opposite sex! See? Equality!
We’re sure she doesn’t know it, but this is precisely the argument that was used to support the old ban on miscegenation — mixed-race marrying — before the Supreme Court. Blacks, the argument went, weren’t being discriminated against, because under the law, neither black nor white could marry outside of their own race. Because the law was perfectly symmetrical in its subordination, there was no equal protection violation. Right?
Wrong. The Supreme Court is smarter than that. Their words: “Judicial inquiry under the Equal Protection Clause, therefore, does not end with a showing of equal application among the members of the class defined by the legislation.” McLaughlin v. Florida, 379 U.S. 184, 191 (1964) (cited approvingly in Loving). If Bachmann were anything like the constitutional scholar she claims to me, maybe she’d know this basic point of law, and not fall into the trap of endorsing the legal tools of institutional racism.