Due Process is the Red Herring in the LGBTQ Movement

The U.S. Court of Appeals for the 10th Circuit recently ruled that states cannot deprive a person of the fundamental right to marry simply because he or she chooses a partner of the same sex. This marked the first time that a federal appeals court has weighed in on the matter, and the early thinking is that the Supreme Court may take this case. Finally, marriage equality in all 50 states, right?

This is all good, yeah, woohoo! (Sidenote: my gaydar sucks big time. Straight guys are gay, gay guys are straight. Hell, lesbians are twinks and vice versa, but I thought I had developed a fail-safe. To determine if a guy is family, I simply look down at his ring finger. Last week, I caught myself doing this. I looked down at this dude’s finger, which indeed was adorned with a ring. Done — he’s straight. Then I remembered the whole marriage equality thing: he’s gay! But, as he opened his clearly European mouth and uttered something about the weather, his Belfast burr turning “air” to “ire,” I remembered the Euro-metrosexual-monkey-wrench! Gay or straight, damnit?! Alas, I resigned myself to utter cluelessness.)

Courtesy of Quick Meme

In all seriousness, it’s really awesome that the lines between gay relationships and straight relationships are increasingly blurry. That’s not the endgame, though. Even if the Supreme Court takes this Utah case and sides with the 10th Circuit about the fundamental right to marry (big assumptions with the Roberts Court), it won’t affect other types of discrimination against the LGBTQ community. Marriage equality is only the opening salvo in a still-uphill battle for full equality. We ought not lose sight of that.

Don’t get me wrong, ever the Machiavelli in me says sure, get to marriage equality by any means necessary. Those means, under the reasoning of the 10th Circuit, would be the Fourteenth Amendment’s Due Process Clause. That is, if the Supreme Court rules favorably in this case, and on due process grounds, it would mean that no person, gay or straight, can be deprived of the right to marry. But due process deals only with “fundamental rights.” What about laws that discriminate against gay men in blood donation? What about workplace discrimination?

Courtesy of Matt Buck via Flickr

A decision on due process grounds would not touch these other types of discrimination, but a ruling under the Fourteenth Amendment’s Equal Protection Clause would. That would deal with all manner of discrimination against the LGBTQ community, including marriage equality.

Brief Equal Protection primer: Under the Fourteenth Amendment’s Equal Protection Clause, laws that single out a specific group for differential treatment or disproportionately impact that group, if challenged, are subject to judicial review. If the law discriminates on the basis of a suspect classification, such as race, it must satisfy the most exacting degree of review — strict scrutiny. Thanks to second-wave feminism, discrimination on the basis of sex/gender is subject to intermediate scrutiny. As it stands now, discrimination on the basis of sexual orientation is subject to the lowest, most deferential level of judicial review — rational basis review.

Blah, blah, blah, I’m losing you so let me get to the point. Until the Supreme Court rules on equal protection grounds rather than due process that sexual orientation-based discrimination merits a higher level of judicial scrutiny, discriminatory laws will continue to receive minimal judicial scrutiny.

I’m glad that marriage equality is sweeping across the country, and that the Supreme Court may finally have occasion to legalize it nationwide. Indeed, by no means would this be a pyrrhic victory. However, it would only nominally affect other issues of discrimination against the LGBTQ community, issues that are arguably more important than marriage equality.

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Chris Copeland (@ChrisRCopeland) is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street.

Featured image courtesy of [Victoria Pickering via Flickr]

Chris Copeland

Chris Copeland is a staff attorney at a non-profit organization in the Bronx, a blogger, and a California ex-pat living in Brooklyn. When he’s not reading, writing, or watching horror, he explores the intersection of race and LGBT issues with Law Street. Contact Chris at staff@LawStreetMedia.com.