Understanding LGBT Rights

Arguments at the United States Supreme Court for Same-Sex Marriage on April 28, 2015

Understanding Constitutional Principles – LGBT Rights & Equality 

1. Equal Protection

The Fourteenth Amendment to the US Constitution says, among other things, that the government must guarantee to every person within its jurisdiction the equal protection of the laws. Notice that it does not identify any particular kind of person; it doesn’t say white person or African-American person or tall person or short person or citizen or non-citizen – it just says person.

Obviously, this clause – the Equal Protection Clause – cannot be read as an absolute bar on the government’s treating some people differently than other people under any and all circumstances. For example, the government treats speeders differently than non-speeders and serial killers differently than peaceful humans. We might all agree that these are reasonable species of disparate treatment. To generalize, the Equal Protection Clause does not target different treatment for an individual under any and all circumstances, but discrimination against certain groups for reasons that seem arbitrary or malicious.

Think of the Equal Protection Clause as the rules of the schoolyard. Imagine yourself as a schoolyard monitor supervising middle-school kids. You see a group of bullies making fun of a kid who seems awkward, has bad acne, and is standing by himself. You might overlook one instance of taunting (maybe even poking and prodding) and hope it stops on its own. You might even overlook two or three instances in the hope that the targeted student will be able to handle it on his own. But as the grownup on scene, you can only let this go on for so long. At some point, if the bullies don’t stop and the awkward kid can’t defend himself, it’s up to you to step in and say, “Enough.”

In this scenario, the targeted kid is the analog to what courts call “a discrete and insular minority” – a group of people who are made to feel outside the American mainstream, who have persistently been targeted for abuse, and who do not have the numbers or political clout to defend themselves. The bullies are the political majority, which throughout American history has had the unfortunate tendency to abuse minority groups as more a national pastime than even baseball. And the schoolyard monitor plays the part of federal courts. Federal judges – unelected, appointed for life, and secure in their compensation – do not answer to the political majority. Rather, they function as the adult in the room (or on the schoolyard). Federal judges (at least good ones) see the Equal Protection Clause as a command to step in and protect powerless minorities who cannot protect themselves.

Law students and others who study the Constitution (and other kinds of law, for that matter) often lose sight of the simplicity, elegance, universality, and even common sense that undergirds our governing principles. The reasons courts protect discrete and insular minorities are the same as the reasons a grownup would protect a defenseless middle-schooler. Let’s take a moment to discuss those reasons, even if they seem like nothing more than common sense:

  1. The student was likely being picked on for characteristics beyond his control. One does not choose to go through “an awkward stage” or develop a bad case of acne; these things happen on their own and, for the most part, can’t be changed at whim. Because these things are innocent characteristics that are not the mark of bad decisions or bad character or guilt, they cannot form a legitimate basis for treating someone badly.
  2. Once taunting or abuse has gone on for too long, the victim will suffer real harm. When we abuse others and hold them down, we inflict trauma. There are real costs associated with that trauma: psychological and emotional scars, feelings of inferiority, and potentially even a desire to lash out in destructive ways.
  3. There is nothing about being an awkward middle-schooler that limits a person’s ability to contribute and participate meaningfully. That being the case, treating a person differently because he’s awkward is arbitrary and malicious. It’s one thing to tell a student he hasn’t been picked for a team because he doesn’t run fast enough; it’s quite another to render him an outcast because he’s awkward and has acne.

Courts use much the same reasoning when applying equal-protection principles. The majority should not use the power of the state to pick on groups based on characteristics that are beyond a group’s control and have no bearing on the group’s ability to participate meaningfully to society when that abuse, if allowed to continue, would cause real harm.

How do these principles apply to the LGBT community?

The Supreme Court has not delved into the important legal questions 1) whether sexual orientation is an inborn or unchangeable characteristic, 2) whether the majority’s history of targeting LGBT Americans has gone on long enough to warrant intervention, or 3) whether a person’s sexual orientation has any bearing on a person’s ability to contribute in any meaningful way.

The answers to these questions seem obvious enough to most of us (to any but the ideologically addled, the answers are yes, yes, and no.) But the Court has found it unnecessary to address those questions by raising another, threshold question: is the majority just being nasty? Believe it or not, the Court has established a principle as simple as this: if the majority is picking on a group just because the majority is being nasty – and just because it can – then no other equal-protection questions need be addressed.

When it comes to marriage and marital benefits for same-sex couples, the Court avoided addressing controversial social and cultural questions around LGBT equality by saying that it discerned no purpose behind anti-same-sex-marriage laws other than a desire to harm. Since anti-same-sex-marriage states failed to argue that same-sex couples were incapable of commitment, love, or child-rearing, the Court was left with no other explanation than that their laws were motivated by animus.

In other words (excuse the frank language), the Court fashioned the following equal-protection rule: Hey majority, don’t be an asshole.

Although that rule (stated crassly but accurately) resulted in legal wins for LGBT Americans, it is not helpful that the Court failed to address the important questions outlined above. If Donald Trump appoints two or more justices, that “don’t be an asshole” rule is likely out the window, and there are no well-established principles set in place to protect LGBT Americans in future cases.

2. Due Process

Do you have a constitutional right to own a dog? To many, that would seem like a silly question. You might be surprised to know how complicated it really is.

To be sure, the Constitution says nothing about dogs or pets. In other words, owning a dog is not a right that is listed in the Constitution, and there are quite a few rights that are listed in the Constitution. If owning a dog is not on the list, then the riddle is solved, right?

Not so fast. The Constitution itself declares that the list of rights enumerated in the Constitution is not exhaustive; there are other rights, too. The Constitution also explicitly says that certain powers belong neither to the state nor the national governments; they belong only to the people. And although the Constitution doesn’t say you have a right to own a dog, it does guarantee you liberty. See the problem? Because the Constitution is written in general, broad terms, there is much to debate. And since the word liberty is featured most prominently in the due-process clauses of the Fifth and Fourteenth Amendments of the Constitution, the question of what liberty means is considered primarily a due-process issue.

Due process is not the same as equal protection. Equal protection is about groups and classifications, whereas due process is about rights. Equal protection is about who you are; due process is about what you do. Sometimes the two overlap, but they are conceptually distinct: same-sex marriage, for example, involves both. The equal-protection issue is whether the government may treat LGBT Americans differently than other Americans, and the due-process issue is whether the government may stop LGBT Americans from getting married.

When applying equal-protection principles, federal courts are like the schoolyard monitor checking for unfair treatment. When applying due-process principles, they are more like a parent whose adult teenage child asks, “Is it okay if I [fill in the blank]?” Courts must decide what decisions people can make on their own, without supervisory interference. That is the essence of liberty.

As to the issue whether we have a right to do something, we can probably all agree that there are some things we should not have a right to do – like roar through crowded traffic at excessive speeds or commit murder. Yet again, a constitutional promise cannot be read as an absolute.

In deciding whether to let a teenager do something without interference (spend the night somewhere else, buy or use a car, etc.), a parent might consider the following:

  1. Whether the activity or conduct or choice (the right) at issue has traditionally and historically been left to adults – even teenage adults (or, conversely, whether the activity or conduct or choice has been relegated to supervisory or parental control); and
  2. Whether the activity or conduct or choice is implicit in the whole idea of independent living for a free and responsible adult, requiring that the activity or conduct or choice be left to the individual rather than some supervising authority.

Courts consider similar principles. If the right to do something (say, own a dog) is something that is traditionally and historically associated with individual choice rather than supervisory mandate, and if the activity involved is implicit in the idea of independent and free living, then it is most likely something that, as a constitutional matter, a person may do without governmental interference. So maybe you do have a right to own a dog after all. Are you surprised?

How do these principles apply to LGBT rights?

This might sound familiar: the Supreme Court has largely skirted the questions typically involved in a due-process case. (There’s something about LGBT rights and equality that the Court must find difficult to address in a forthright way.) While the Court has said that marriage is an issue that has traditionally been associated with individual choice and that it regards that choice as implicit in the idea of independent and free living, it has never squarely said the same thing about same-sex relationships (although, to be fair, it has come close.)

And as to the sexual conduct associated with same-sex relationships, the Court again found a way around addressing the issue. Instead of analyzing whether people have a right to engage in certain (or any) intimate sexual practices, the Court flipped the question: it asked instead whether the government had any legitimate reason to ban such practices. Having posed that question, the Court said that a moral objection by the government to certain conduct, standing alone, was not a legitimate reason to ban that conduct. Put another way, a state may not ban sexual practices merely because the majority of people in a state find those practices to be icky; absent some health or safety concern, said the Court, the state should mind its own damn business.

This was news (bad news) for social conservatives, and once again the Court’s reasoning resulted in a win for the LGBT community. But once again, the Court’s failure to set certain precedents as to same-sex marriage and intimate sexual decisions – with reference to recognized analytical frameworks rather than new ones invented just for LGBT issues – has left future, conservative judges an opening. They can wave off prior cases as anomalies and outliers rather than legitimate expositions of concrete constitutional principles.

It would be hard for future justices and courts to ignore a mandate to treat intimate sexual choices as fundamental constitutional rights; it will be easier for them to ignore the admonition to mind their own damn business.


LGBT rights are tenuous and under attack. Our work has just begun.