LGBT Supreme Court

Ohio’s Absurd Argument in Favor of Gay Marriage Bans

Written by SK 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.