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04/30/2015

John Marshall Harlan (I) and Giles Hotchkiss on Same Sex Marriage Issues
Andrew Hyman

The Obergefell case that was argued Tuesday involves discrimination based upon gender, but not discrimination against either gender.  Whether that distinction will have any effect in the case, I have no idea, but it should probably impact the standard of review.
 
The first Justice Harlan once famously wrote in Plessy v. Ferguson: "Everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons".  In contrast, no one in the Obergefell case can seriously think that these marriage laws were targeted at either men or at women as a class.  Had they been, then intermediate scrutiny would be warranted according to the Court's precedents.
 
Does any of that matter in terms of the original meaning of the Equal Protection Clause?  Yes, there is evidence that it does.  For example, Congressman Giles Hotchkiss of New York stated on February 28, 1866: "Why not provide by an Amendment to the Constitution that no state shall discriminate against any class of its citizens...." (emphasis added).  The Equal Protection Clause was drafted soon thereafter.
 
As to the text of the Equal Protection Clause, it seems like a huge stretch to think that a person is entitled to "protection" if he or she is not being discriminated against.  If that were really the goal of people in the 1860s, then we likely would now have the Equal Treatment Clause.  Unlike my esteemed co-blogger Chris Green, I am convinced that the word "protection" in the EPC is very broad, but it is not limitless.
 
In Loving v. Virginia there definitely was discrimination against at least the following class: mixed-race offspring.  The laws at issue in Loving were motivated largely by animus toward mixed-race children.  That case also involved animus against black people, who were deemed harmful to white racial purity.  None of that is comparable to the gender discrimination in Obergefell, claims to the contrary notwithstanding, and so the review ought to proceed under the rational basis standard.  (I would also accord a large role to Congress, but that is another story.)  
 
In a nutshell: Obergefell involves gender discrimination, but not discrimination against either gender.  The former is insufficient to invoke the Equal Protection Clause, or intermediate scrutiny thereunder.