A fundamentally bilious argument

Update: I dashed this post off on Saturday night shortly after the Lewis column was published on the Strib web site. I should have mentioned that Lewis was writing in support of the bill to add a constitutional ban to gay marriage in Minnesota.

The fundamentally bilious Jason Lewis makes a fundamentally bilious and silly argument about equal protection in his column in the Strib on Sunday, May 15^th. Here's part of what Lewis says:

Under state law, same-sex marriage is currently prohibited in Minnesota, and previous court rulings have opted for traditional marriage as well. Nevertheless, what proponents fear is what happened a state away when the Iowa Supreme Court arbitrarily struck down a Defense of Marriage Act, or DOMA. Apparently unable to control their legislative appetites, the justices (three of whom have been recalled) found that gay couples were "similarly situated compared to heterosexual persons" with respect to the purposes of the law governing marriage.

Moreover, plaintiffs need not be in identical circumstances for Iowa's bizarre new test of legal uniformity to apply. If so, the court asserted, "nearly every equal protection claim could be run aground under a threshold analysis ... rather, equal protection demands that the law itself must be equal." This is breathtaking activism.

Especially so given that the explicit purpose of DOMA was to make clear that same-sex unions were not "similarly situated." The Iowa law, not unlike Minnesota's, made no classification on the basis of race (the real intent of "equal protection"), gender or even sexual preference as long as civil marriage consists of two individuals of the opposite sex. That is, anyone may marry under the law.

Why, implies Lewis, the Iowa Supreme Court was clearly off its rocker, thinking that homosexuals were similarly situated to heteros. They're queers, for crying out loud! The difference is obvious! Lewis doesn't really explain how it makes a difference for marriage purposes, though. Some people, like Katherine Kersten, have tried to justify it on the basis of procreation as a marriage activity, which it is, of course, but there are a lot of marriages that don't, or don't want to produce offspring, or didn't plan to, anyway, but got a little carried away) and a lot of non-marriage coupling that does.

It's really a perfect equal protection case, though. Lewis makes the odd and entirely inaccurate claim that equal protection is only about race. Sorry Jason, it's about a lot more than that: discrimination on the basis of religion, ethnicity or national origin, age, sex, voting – that's not even an exhaustive list. Equal protection concerns itself whenever two groups of people are treated differently without a sound policy basis for doing so.

Some courts are concluding that They're queers for crying out loud! is not a sound policy basis.

What is that policy basis, Jason? Gay marriage will destroy "regular marriage?" It seems to be doing that pretty well on its own. Gay marriage would actually increase the number of marriages.

We've already addressed the procreation business.

Gay marriage will attract people into gayness? That doesn't seem likely based on current science or just plain observation.

Gay couples are likely to remember their anniversary date better and make you look foolish, Jason? Well, that's possible.

Moses and the Apostle Paul were agin' it. As Rep. Steve Simon point out, that's not a good reason in a civil society, which we are, although it'll slip away if people like Katherine Kersten, Tom Pritchard, and Bradlee Dean have anything to say about it.

More people can file joint tax returns and apply for spousal insurance benefits? It'll cost money, says Jason. Well sure, but it cost the South money when it had to give its slaves, too. The region fought abolition for that reason. Keeping a group down for just economic reasons is the essence of an equal protection claim.

Lewis' backstop is Let the People decide! That's a superficially attractive idea, until you consider the application of civil rights law in the south, or the rights of a Muslim man accused of a crime, or the right of a Catholic or a Jew or a woman to compete for a job if their skills are equals to others. As a practice, we don't vote on civil rights and liberties.

Whenever a court rules against a conservative on a social policy civil rights, it must be because the judges were a bunch of "activists." Lewis spits that term out like he spits out "collectivist."

But it's just name calling. And two can play that game.