How to End Legal Discrimination Once and For All

While North Carolina’s professional gay bashers such as Peter Brunstetter and Franklin Graham think that they have prevented gay marriage from ever being legalized in the Tarheel State, their victory is but a hollow one. As pro-gay marriage North Carolina state Senator Eleanor Kinnaird pointed out last year, the North Carolina Supreme Court will not be legalizing gay marriage anytime soon, especially given that the state repeatedly elected the proudly anti-gay, anti-black Jesse Helms to the U.S. Senate. The truth is that Amendment One must be repealed by federal intervention. On behalf of the American Foundation for Equal Rights, lawyers David Boies and Ted Olson have been attempting to bring a case to the U.S. Supreme Court that will result in same sex marriage. I am a member of the American Foundation for Equal Rights, and I hope the U.S. Supreme Court rules in favor of gay marriage. However, I am not extremely optimistic about the likelihood of the case getting heard any time soon. It is important to note that by the time Brown v. Board of Education was decided, public school segregation was only required in the South. Only a few states in the West had laws specifically permitting it. Virtually every Northern state had either banned it or had not passed a law one way or the other, usually because racist sentiments in the state were not strong enough and the black population not big enough to make it an issue. Looking at the background of Loving v. Virginia shows something similar. While most states had enacted laws against interracial marriage at some point, every state in the Northeast and many states in the Midwest had either legalized it by the end of the 19th century or never had a law against it. After World War II, the Western states, along with the Midwestern states that had not legalized interracial in the 1800s, followed the lead. By 1967, the year that Loving v. Virginia was decided, interracial marriage was legal in thirty-three states. Gay marriage is currently legal in less than ten. Thus, a Supreme Court decision legalizing gay marriage nationwide would arguably be much farther ahead of public opinion than Brown v. Board of Education and Loving v. Virginia were. The Supreme Court is reluctant to get ahead of public opinion. We don’t like to talk about this, but courts have a harder time than Congress or the president enforcing edicts that the majority in an individual state or the country as a whole do not support. The president and federal government, after all, control the military and federal law enforcement. Don’t get me wrong. Gay rights activists are absolutely right to try to get a favorable ruling from the Supreme Court. However, I do believe that other strategies need to be pursued, not instead of litigation, but in addition to it. In my mind, one of the strategies that needs to be pursued is a twenty-eighth amendment to the U.S. Constitution. This amendment should read: “Equality of rights under the law shall not be denied or abridged on account of gender, gender identity, or sexual orientation anywhere in the United States, by the federal, state, or local governments or by any government in U.S. territories or Native American reservations. No government in the United States may restrict marriage for same sex couples. Discrimination in employment or housing based on gender, gender identity, disability, race, religion, color or sexual orientation is forbidden anywhere under U.S. jurisdiction. Jurisdictions failing to adhere to this amendment will be denied any federal funding, and Congress shall have the power to enforce this amendment by appropriate legislation.” This may sound wordy. But a vaguely worded amendment won’t do. Let’s say, for instance, that Congress were to pass an amendment simply stating that gays are entitled to equal protection under the law. That would not solve the problem, because every homophobic state from Idaho to Florida will simply pass a separate but equal civil unions and call it good. They could even try to argue that their current laws do not violate the equal protection clause, because both gays and heterosexuals are required to marry someone of the opposite sex. Silly and obstructionist? Maybe. But after Reconstruction, many states argued that the Fourteenth Amendment did not prohibit segregated schools or bans on interracial marriage, because such laws applied to people of both races. This problem was exacerbated by the fact that, while some proponents of the Fourteenth Amendment, such as Charles Sumner, wanted to completely remold America into a nation of racial equality, others still believed in some form of white supremacy and were not interested in initiating change to the extent that their abolitionist allies desired. Wendell Phillips proposed a text for the Fourteenth Amendment that would have essentially forbidden government from taking race into account, but this wording was rejected, and the result was eighty years or so of Jim Crow. Furthermore, the U.S. Supreme Court in 1883 ruled that the Fourteenth Amendment only applied to governments, not the private sector, and struck down a civil rights bill that restricted racial discrimination by private business. If there is no clause in the Twenty-Eighth Amendment dealing with private businesses, it could be argued that companies still have the right to discriminate against gay employees. This amendment will be highly difficult to pass, let alone to get three fourths of all states to ratify. But there is no other option. By hook or by crook, gays and lesbians must get equal rights under the law. A constitutional amendment would give these rights a safety that a mere federal civil rights bill will not. 

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