Lewis v. Harris - part 2

The New Jersey Supreme Court's recent ruling in Lewis v. Harris raises several important issues regarding how the law in this country treats gender and sexuality. The court ruled that the state could not deny the equal protection of the law to couples based on sexuality.

This begs the question: why isn't this obvious? The state constitutional amendments banning gay marriage in 2004 (and all the ones on the ballot in 2006) - why aren't these obvious equal protection violations?

A brief digression into equal protection law:

Traditionally, the judicial system shows deference to the decisions of legislative bodies. Even if a certain law discriminates against a certain group of people, Supreme Court precedent points towards only needing the legislative body to provide a "rational basis" for the law.

In certain cases, however, courts use "strict scrutiny" in looking at laws. A law that faces strict scrutiny must provide a compelling government interest, and must further that interest in the most "narrowly tailored" and least restrictive way possible. Usually (though not always), laws that face this test are struck down.

Cases that warrant strict scrutiny are usually those that impinge upon a "fundamental interest" (e.g. voting) or when the law uses a "suspect classification" (e.g. race). The Supreme Court is often hesitant to apply strict scrutiny; in the 1973 case San Antonio v. Rodriguez the Court ruled both that education is not a fundamental interest under the U.S. Constitution and (essentially) that socio-economic status is not a suspect classification.

To return to the topic at hand, laws restricting gay marriage do not usually face strict scrutiny. Marriage is not a fundamental interest under the U.S. Constitution, and sexuality is not usually considered a suspect classification. In this arena, state legislatures (or even the U.S. Congress) can get away with a lot.

Likewise, gender-based discrimination also does not face strict scrutiny. Gender-based classifications fall, according to precedent, under "intermediate scrutiny," where a law's enacting body needs to provide a "exceedingly persuasive justification." While this raises a high bar for legislation, it still allows for legalized gender discrimination. If anyone asks why an Equal Rights Amendment is needed when equality is already "guaranteed" in the Fourteenth Amendment, this is the reason.

Since this post is intended for A Blog Without a Bicycle's Feminist Blog Carnival, I want to address what all this legalese has to do with feminism. What feminism means to me is a striving towards realization of the ideals of equality upon which America is built. If we are to successfully promote feminism's ideals, then equality for all genders and sexualities should be embodied not just in our thoughts and actions, but in our laws as well. While the justices of the New Jersey Supreme Court are correct - "although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a maturing society" - we should not be any less vocal about promoting an Equal Rights Amendment for the Constitution - one that recognizes the equality of all people, regardless of gender or sexuality.