LGBT Supreme Court

Ohio’s Absurd Argument in Favor of Gay Marriage Bans

JM Ashby
Written by JM Ashby

From Paul Clement's absurd arguments in favor of the Defense of Marriage Act (DOMA) to the case against Obamacare subsidies in front of the Supreme Court now which doesn't appear to have an injured party, we've seen some pretty terrible arguments presented to the court over the last several years.

Attorneys representing the state of Ohio are adding to the pile as they argue that the Equal Protection Clause of the Fourteenth Amendment should not apply to gay people because gay people have too much political power.

Comparing discrimination against gay people to discrimination against criminals, state attorneys argue that the former should be acceptable under the Constitution if the latter is.

Ohio’s claim comes as part of a greater effort to convince the justices that laws which discriminate again gay men, lesbians and bisexuals should not be treated with skepticism by courts applying the Constitution’s guarantee that everyone shall be afforded “the equal protection of the laws.” [...]

It is acceptable, for example, for the government to discriminate against unqualified job applicants when making hiring decisions, or to discriminate against people who commit serious crimes in deciding who to incarcerate.

When the government discriminates against groups that have historically been subject to unequal treatment that has little basis in their ability to “perform or contribute to society,” however, the Court applies what is known as “heightened scrutiny” to such discrimination. This is why discrimination on the basis of race or gender is typically not allowed, because racial minorities and women have historically been subject to the kind of irrational discrimination that triggers heightened scrutiny.

State attorneys are essentially arguing that discrimination of gay people does not warrant the court's scrutiny because they have too much political power to qualify as a sufficiently vulnerable minority.

I'd say that's an awkward argument to present at a time (the brief is dated March 27th) when neighboring Indiana just passed a so-called "religious freedom" law that enables discrimination against gay people.

The idea that lesbian, gay and bisexual people have amassed too much political power to be considered a vulnerable group is absurd considering that they are barely represented at all in elected government. Gains seen in recent years by the equal rights movement cannot be attributed to their control of state houses or federal court rooms.

If your definition of political power is that they 'have some rights now' compared to none before, I suppose it would make a little more sense.

  • Christopher Foxx

    The idea that lesbian, gay and bisexual people have amassed too much political power to be considered a vulnerable group is absurd considering that they are barely represented at all in elected government.

    So is the idea that racism is over and the Civil Rights Act is unnecessary. And look how that turned out.

  • Christopher Foxx

    …laws which discriminate again gay men, lesbians and bisexuals should not be treated with skepticism by courts applying the Constitution’s guarantee that everyone shall be afforded “the equal protection of the laws.”

    OK. Nobody should have to go any further than that to realize what a crock of shit this is and throw it out of court. Seriously, if anyone came to me with that I’d tell them to stop right there, go away and not even think about coming back until they had an argument that at least wasn’t so obviously unconstitutional.

    “Laws which discriminate to treat a group of people differently should not be considered to violate the Constitutional guarantee that a group of people will not be treated differently.” My god.

  • muselet

    It’s easy to point and laugh at people who make such a terrible argument. It’s easy to respond to a terrible argument like that with logic:

    The implication of Ohio’s argument is that groups seeking to invoke the Constitution’s guarantee of equality must bring a lawsuit during a kind of Goldilocks period — when the group simultaneously has amassed enough clout to earn the justices’ sympathies, but without amassing so much clout that they are only permitted to appeal to the political branches. But the Court’s civil rights cases have never insisted on this kind of Goldilocks rule.

    Likewise, it’s easy to forget that Romer v. Evans was a 6-3 decision, with Antonin Scalia and Clarence Thomas being two of the dissenters. I doubt those two have changed their opinion of those icky people who have sex the wrong way, and I doubt it would be all that hard to scare up another couple of votes at least to endorse Ohio’s nonsense.

    Just because it’s absurd doesn’t mean the Supremes won’t swallow the argument hook, line and sinker.

    –alopecia

    • JMAshby

      Just because it’s absurd doesn’t mean the Supremes won’t swallow the argument hook, line and sinker.

      Accurate.

      It wasn’t very long ago that the Supremes decided that racism is over and thus major portions of the Voting Rights Act are unnecessary.

      Less than 24 hours later, states that previously needed preclearance from the DOJ began pushing new voter ID laws.

  • GrafZeppelin127

    Wow, that there’s some powerful stupid. But we’ve heard it before.

    Next thing you know Sean Hannity will be saying we should start sending non-criminals to prison, otherwise we discriminate against criminals.

  • Nefercat

    Lately I keep seeing the pretty retro postcard from the state I grew up in attached to really depressing articles, one right after another. When I was growing up, we had a flaming river and all the garbage cans in Cleveland had “Best location in the Nation” stenciled on them.

    Now Cleveland is green and pretty instead of an industrial wasteland, but with high unemployment, etc. I haz a sad. I guess I will have to order some of the best chocolate in the world from Malley’s Candy in Lakewood (my hometown) to feel better.

    • JMAshby

      It does me no pleasure as I live in Ohio. It’s still better than Kentucky. They fix the roads here.

      • ninjaf

        As a Michigander now living elsewhere, this made me snort/laugh. I do not miss the roads.