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Yesterday we made what we think is an important point about Ted Cruz and his new anti-gay proposal: right-wing voters – afraid, angry, and powerless over their own lives – will seek to find some sense of power by lashing out (through their representatives, like Cruz) against any group they come to view as outside the tribe, vulnerable, and powerless to strike back. These right-wing voters play the part of a punk targeting a victim. We need to reach out to them with new stories, messages, and issue frames that nudge them away from that role of punk targeting the defenseless and toward playing a far more satisfying and empowering role: the role of hero, the one who protects the defenseless. This will take years, decades, even lifetimes.

In the meantime, the Chimps have a few things to say about the constitutionality of Cruz’s little plan. As we explained yesterday,

Cruz will introduce legislation that will not just allow a homophobe to discriminate against actual gays for being gay, but will also allow a homophobe to discriminate against anyone who stands against his or her bigotry provided the homophobe is basing his or her discriminatory practices on Cruz’s favored religious beliefs: either that same-sex marriage is ungodly or that any kind of sex outside one-man-one-woman marriage is, like gays themselves, an abomination.

There are two constitutional problems with this.

  1. Establishment Clause

Many Republicans are also Christian Theocrats; their aim is to oppress non-believers, suppress minority or secular viewpoints and life choices, and cause non-conforming humans to repress their true selves. They long for a world where the faithful bathe in ecstatic intoxication, the faithless get pilloried, and gay teens save their parents great heartache by hanging themselves from basement rafters. They’re a delightful crowd, these ‘Christians.’

Fortunately, the founders were not Christian Theocrats. As the Chimps explained in an earlier post,

If I’m in the majority, I don’t get to tell you what to believe. That’s what the First Amendment’s Establishment Clause means. If I’m in the minority, you don’t get to tell me what to believe. That’s what the First Amendment’s Free Exercise Clause means. Aside from those two commands, the US Constitution also says that no religious test may be required for holding public office. And aside from those three things, the Constitution says precisely nothing about religion.

The First Amendment prohibits Congress from establishing religion. Federal courts have said that the Establishment Clause prohibits the government from a) promoting religion over non-religion; b) promoting non-religion over religion; or c) promoting one sect (religion) over another.

Cruz’s proposal violates two of these principles. (Since politicians don’t get elected in the United States by running around proclaiming “There is no God,” we rarely have occasion to test principle (b) above.) As to principle (a), Cruz’s proposed legislation clearly identifies the promotion of religious beliefs as its entire purpose; it obviously promotes religion over non-religion. As to principle (c), his legislation identifies two particular religious beliefs for favored treatment over all others; it not only favors one religion over all others, but one Book of the Bible (Leviticus) above all the other Books.

Having said all that, the Chimps are of the opinion that the Supreme Court, and especially Justice Anthony Kennedy (the Court’s critical swing vote) will ignore the Establishment Clause; discussing religion is uncomfortable, and the Court is likely to strike down Cruz’s legislation (should it become law) on an alternative basis, rendering the Establishment Clause unnecessary to its judgment.

  1. Equal Protection

As we have explained elsewhere,

The Fourteenth Amendment to the US Constitution says, among other things, that the government must guarantee to every person within its jurisdiction the equal protection of the laws. Notice that it does not identify any particular kind of person; it doesn’t say white person or African-American person or tall person or short person or citizen or non-citizen – it just says person.

Obviously, this clause – the Equal Protection Clause – cannot be read as an absolute bar on the government’s treating some people differently than other people under any and all circumstances. For example, the government treats speeders differently than non-speeders and serial killers differently than peaceful humans. We might all agree that these are reasonable species of disparate treatment. To generalize, the Equal Protection Clause does not target different treatment for an individual under any and all circumstances, but discrimination against certain groups for reasons that seem arbitrary or malicious.

Anthony Kennedy, for all his judicial warts, will go down in history as the most powerful champion of LGBT rights on the Court. (In a later post, we will discuss how he has nonetheless left the LGBT community vulnerable to an ideological shift on the Court, but for now let’s get to his bottom line.)

The Equal Protection Clause is understood to be primarily a bulwark against the majority targeting powerless minorities based on immutable (unchangeable) characteristics. Kennedy (and therefore the Court) has never said that sexual orientation or identity is an immutable characteristics giving rise to any special or elevated level of equal-protection scrutiny for anti-LGBT laws. In a sense, that seems like bad news (and as we’ll discuss in a later post, in a sense, it is.)

But as the Chimps tell students all the time, there is a clever strategy behind Kennedy’s approach. Kennedy has emphasized that the Equal Protection Clause doesn’t just prohibit discrimination against historically powerless groups that share immutable characteristics; it also prohibits the majority from targeting any group when targeting that group is done just for sport. Applying that principle, Kennedy has developed the habit of striking down anti-LGBT laws on the lowest level of judicial review (it’s called rational-basis review) a court can apply. In this way, he not only strikes these laws down; he does violence to them.

You see, it’s one thing to say that an anti-LGBT law is invalid because it doesn’t serve a compelling (or important) interest or because it’s just a titch overbroad in its application. Were the Court to subject anti-LGBT laws to exacting scrutiny (based on immutability and a history of powerlessness), those are the kinds of things the Court would be saying. But Kennedy likes to go a step further will anti-LGBT laws; he has consistently ruled that such laws cannot even survive the most permissive and lenient level of judicial scrutiny because there is no conceivable legitimate interest that could justify them.

Instead, says Kennedy, laws that target the LGBT community are invariably based on nothing more than “a bare desire to harm a politically unpopular group” – what Kennedy calls animus. And animus (hatred) is not a legitimate interest upon which a government may act. The majority may not use the lawmaking function of the government to target an unpopular group just for sport.

That is precisely what Kennedy will say (with SCOTUS in tow) providing that he and all the Court’s current left-leaning justices are still on the Court by the time Cruz’s diabolical legislation comes before it.

What if they’re not all still on the Court? More on that later.