How to End Legal Discrimination in America Once and For All

The Supreme Court’s recent gay marriage decisions, despite being steps in the right direction, are conspicuous for not going far enough. Marriage inequality is still the law in almost three times as many states as have legalized marriage equality. Perhaps more horrifying, in many states it is both illegally to marry someone of the same sex and legal to fire someone or discriminate against them in housing based on their sexual orientation. In light of these and other facts, 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? Of course. 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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