So what’s the equal protection clause for, anyway?

The Equal Protection clause generally provides that “no state shall … deny to any person within its jurisdiction the equal protection of the laws”. It is based on this clause in their respective state constitutions that the supreme courts of Connecticut, Massachussetts and California struck down bans on gay-marriage. Not to be outdone, a segment of the population in both CT and CA sought to have these decisions reversed by some form of constitutional amendment. Prop 8 in California passed, the call for a Constitutional convention in CT failed.

So what’s a Californian to do? And where does this leave the Equal Protection Clause of California? The primary purpose of the equal protection clause, as I see it, is to protect a minority of citizens from the subjugation of a majority. Every individual should have the same rights as every other individual. That has to be the thrust of the EPC. But a slim majority of voters in California decided that gay people were less deserving of the same rights (whether this was done on the up-and-up in open to debate: there are reports that proponents of the ban were using some downright despicable tactics, like scaring people [scroll to the bottom] that gay-marriage meant a gay curriculum in schools).

So what now, anyway? Plenty, apparently, as this post from Co-op highlights. The attorney for the first gay couple to get married in CA will file a lawsuit against Prop 8 with a new and controversial legal argument (although it doesn’t state what that is), there may be a large number of ballots that have not been counted and the city of San Fran will file another suit.

But there’s yet another challenge – one that may well shape up to be the most interesting Constitutional issue of our times. Yes, whether the amendment itself is uconstitutional because it violates the Constitution. That’s the crux of the ACLU/Lambda challenge: the so called “amendment/revision” distinction. An amendment requires only a simple majority of voters, but undoing a core fundamental right and removing it from the Constitution is a revision to the Constitution and requires a constitutional convention and 2/3 majority of the legislature.

The post at Co-op seems to disagree:

Another suggestion from a friend is that the proposition fails because it is inconsistent with other constitutional provisions. That seems to misunderstand the function of constitutional amendments. Where these are inconsistent with other provisions, they are typically intended to overrule those provisions. (I.e., the 13th amendment and the slavery provisions; or the Prohibition amendments.) As a matter of basic interpretation, I think that the reading one would give it is that to the extent that the Equal Protection clause required marriage to be extended to same-sex couples (Marriage Cases), that interpretation is now overruled.

I do think the examples he gives above are different from the situation at hand. At least with the prohibition amendments, a later amendment specifically repealed an earlier amendment. That’s not the case here, where a fundamental right is at stake.

Could a State decide to take away fundamental rights? Can CT tomorrow pass an amendment banning inter-racial marriage? Or making all immigrants slaves? Or preventing women from marrying men younger than them? Or heck, rolling back all the way to the days of “separate but equal”? After all, it was an interpretation of the Constitution that banned racial discrimination.

Why would that not be subject to challenge? And if it is, then why isn’t CA’s Prop 8?

I think the coming months will indeed see this challenge and the question of what happens when a provision of the Constitution clashes with a subsequent amendment. Which is given more weight?

To end, I leave you with this personal note from this DKos post about Prop 8:

I still can’t believe that millions of total strangers who have never so much as laid eyes on me had the right to vote on my rights and equality at all, let alone that they voted against them. If this was, in fact, an unconstitutional proposition, it means they did not have that right. It won’t change the fact that they voted how they did, but it will take some of the pain away.

And that’s just it. Do we want one group of people deciding the rights and freedoms of another group? Thank you, CT, for having the good sense to not fall for this one.

11 thoughts on “So what’s the equal protection clause for, anyway?

  1. Miranda

    Great post, Gideon. Can’t wait to see how it all unfolds. I wonder how many con law professors will use some fact pattern like this on a final exam. Good stuff.

  2. Gerard

    Do we want one group of people deciding the rights and freedoms of another group?
    Well, we do it all the time. Like on election day when a majority of citizens decided (some) 17 years can vote in a primary.

    And a good chunk of our legal code does that too, I’d daresay.

  3. Jen

    What I’m curious about is this. Under the Equal Protection clause, if Prop 8 stands, are ALL marriages in California now null and void. For example, if the state must stop giving marriage licenses to same-sex couples until this is resolved, shouldn’t they stop giving marriage licenses to straight couples too? Equal Protection, right?

  4. MikeD

    Think of it as a series of decisions:

    1. Does Prop 8 actually repeal some of the extent of equal protection? Or does it stand alongside equal protection?

    If court finds that Prop 8 stands alongside equal protection, I think the court will find for no marriage. In the original In Re Marriage Cases decision, the court said that either no marriages or marriage for all would meet the equal protection requirement, but the court choose the former because it was clearly in accordance with present public policy.

    2. If the court finds that Prop 8 does repeal some of the extent of equal protection, is that a revision or an amendment?

    Note that by the time you reach this decision, you already have accepted that Prop 8 DOES invalidate equal protection, which I think requires the judges to at least take more seriously the argument that this is a revision rather than an amendment.

    So for there to be marriage inequality, the Yes on 8 litigants will have to win both arguments- that Prop 8 does modify equal protection, and that modification is an amendment, not a revision.

  5. MikeD

    A. Does Prop 8 end equal protection? If yes, skip to B.

    If no, then the court must reconcile equal protection with no marriages for same sex couples. They have, in fact, already answered this in the decision of In Re Marriage Cases. The decision actually says that either marriage for all or marriage for none would fulfill the constitutional requirements, but that there is clear that marriage for all is more in line with state policy.

    Prop 8 has changed that state policy, explicitly prohibiting the court from requiring marriage for all. Therefore, to reconcile Prop 8 with equal protection, the court would have to order that nobody can have marriage. Whether this would be retro-active would be a complex question, but shouldn’t impact the above reasoning. Also, the public would likely then reverse Prop 8 at the next opportunity, as a way to get the rest of the marriages back.

    B. Does ending equal protection revise (as opposed to amend)?

    If Yes (it revises), then the initiative does not take effect, and since the legislature won’t pass a ban on same-sex marriages, this is pretty much over.

    If No (it amends), then presumably it can be amended back.

    1. Jen

      Thanks for the reply Mike. As I read the opinion for In Re Marriage Cases it seemed to me the whole premise of the decision was the Equal Protection Clause. It’s been a long, long time though since I’ve read case law so my understanding is fuzzy at best.

  6. Dick Mills

    I concur that this is a great post. And, I apologize in advance because my question is a bit wordy.

    My question is why no one seems to ever bring up REITMAN v. MULKEY. This is a case where Proposition 14 was approved as an amendment to the California constitution by 65% of the electorate in the early 1960’s. The California Supreme Court invalidated the amendment on equal protection grounds. The amendment was designed to overturn fair housing laws passed in the California legislature which made it illegal to discriminate in sale or leasing of housing.

    The California decision was appealed to the U.S. Supreme Court which upheld the California court’s decision. Some have made the argument to me that the only reason that it could be appealed at the Federal level was because the California court utilized the Federal equal protection clause to arrive at the decision which overturned the California amendment, but I can find no evidence of that.

    In fact, California’s equal protection clause directly references the fourteenth amendment to the U.S. constitution, which basically would mean that every equal protection ruling would be based on the fourteenth amendment.

    Am I missing something?

    Thanks, and here is the case reference:

    U.S. Supreme Court
    REITMAN v. MULKEY, 387 U.S. 369 (1967)
    387 U.S. 369

    No. 483.
    Argued March 20-21, 1967.
    Decided May 29, 1967.

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