Skip to Content

Support MinnPost

MinnPost logo 7th Anniversary

MinnPost’s online auction is now live!
Register and start bidding today

Jason Lewis: Gays already have equal right to marry someone of opposite sex

In his Sunday Strib column, righty radio talkster Jason Lewis argued that a ban on same-sex marriage doesn’t discriminate against gays or lesbians because they have an equal right to marry anyone they want, as long as the person they marry is of the opposite sex.

You think I’m kidding, but I’m not.

It wasn’t the main or the only point of the column, but the argument is definitely in there. Although Minnesota state statute already limits marriage to opposite sex couples, Lewis argues that the state needs to put its ban on same-sex marriage into the state Constitution (as the Republican legislative majority proposes) to guard against what happened in Iowa, where the state Supreme Court struck down a similar law on equal protection grounds. Wrote Lewis:

“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."

Sadly or hilariously (depending on your mood), Lewis is reverting to the basic logic of willful blindness used by the U.S. Supreme Court in one of its most infamous rulings, Plessy v. Ferguson, which created the now-discredited and repudiated doctrine of “separate but equal.”

Louisiana in the 1890s had separate railroad cars for white and “colored” people. Homer Plessy was a “colored” man (actually, seven-eighths white, by ancestry) who was kicked out of the white car and made to sit in the “colored” car. He sued, seeking to have the state law on separate railroad cars struck down under the “equal protection” clause of the 14th Amendment to the U.S. Constitution.

The Supreme Court, by 7-1, upheld the Louisiana law under the argument that it treated whites and blacks equally, even if it required that they be separated. After all, whites had no more right to sit in the “coloreds-only” car than “coloreds” had to sit in the whites-only car. What could be more equal than that?

De Jure segregation remained legal for more than 60 years under the Plessy doctrine before the Supremes figured out, in Brown vs. the School Board (1954), that separate was inherently unequal.

Now comes Lewis to argue, in 2011, that gays and lesbians already have equal marriage rights with straights. They are all equally entitled to marry an individual of the opposite sex.

And, by the way, since it turns out that everything is really about tax cuts for the wealthy, Lewis ends by arguing (he may be kidding here, not sure) that if equal protection means the law is required to treat everyone the same:

"what to make of all those taxpayers who by the dint of hard work and sacrifice find themselves in a higher tax bracket compared with their neighbors? Sounds like an equal protection claim to me — which, when you think of it, would be about the only good thing coming out of this judicial nonsense."

Get MinnPost's top stories in your inbox

Comments (20)

The simplest response to this facile argument is to ask Mr. Lewis to get back to us after he attains any credential that would suggest he is qualified to render legal opinions. Lewis is toying with an amateur-level ignorance-as-expertise "common sense constitution" school of interpretation that plays much better in the public sphere than it does in the courtroom (where it matters).

But knowing that Michelle Bachmann has a law degree and is just as likely to have made the argument, it is clear that even if you lead a demagogue to a legal education, you can't make it think.

Jason's argument was vulnerable in a lot of ways. But my basic problem with the proposal is different. The constitution amendment process should not be used for controversial issues, almost as a matter of definition. To the argument, "Let the people decide", the response is that by putting something in the constitution, the intent is to take matter permanently out of the hands of the people. The problem with that is clear with respect to gay marriage. What is very clear is that public opinion on this issue is changing very fast. The reason why opponents of gay marriage are intent on putting a ban in the constitution is that they are aware of that and they want to freeze into the constitution a position which is becoming increasing unpopular, that is they want to thwart the will of the people.

Various proponents of 'protecting' marriage have "argued that a ban on same-sex marriage doesn’t discriminate against gays or lesbians because they have an equal right to marry anyone they want, as long as the person they marry is of the opposite sex."

What I fail to understand is how this is a 'protection' of marriage. They're saying "Bill, I know you want to marry Pete, but you can't. But, because we want to both treat you fairly and protect marriage, we suggest you to marry Sally instead." Voia! Sanctity upheld!

I’m not a lawyer, and I don’t play one on TV or the Sunday morning talk shows, either.

Still, when I was teaching, we dealt with Jim Crow laws in my classes by not only studying the reasoning involved in *Plessy v. Ferguson* and *Brown v. Board of Education of Topeka,* I also had my students read what came to be known collectively as “The Civil Rights Cases,” a conglomerate of several individual racial discrimination cases that came before the SCOTUS in 1883.

Justice Bradley wrote the majority opinion, which boiled down to the idea that discrimination against individuals by *states* was not permitted under the 13th and 14th Amendments. Discrimination by *individuals,* however, was something the court’s majority thought constitutional. So, in the 1880s, the Court ruled that it was OK to discriminate because of race, just so it wasn’t state government (and by implication, federal government) doing it, and in the 1890s the Court ruled that, as long as that discrimination did not prevent the establishment of separate but equal facilities or treatment, it was constitutional. The combination of the two pretty much eliminated the concept of “equal under the law” until Brown v. Board of Education in Topeka in 1954, and the civil rights cases of the 1960s, finally put Jim Crow laws out of commission and began to change social norms.

Some of the same sophistry is in use to justify discrimination against homosexuals, especially those who want to marry, Mr. Lewis being merely one of many, many examples, and in some states, this sort of discrimination has been written into law, with some state court systems supporting it. Eventually, I think it will go the way of Jim Crow laws, but in real time and the real world, it’s of some importance to get a feel for just how long “eventually” might really mean. I have no idea what the answer might be. The prejudices against gays and lesbians seem visceral enough to fall into the same category as those expressed against racial and ethnic groups.

Some people can’t deal with change. Some people can’t deal with differences. Mostly, those disabilities stem from their upbringing, and are typically based on a variety of fears. Frank Herbert wrote a line in “Dune” years ago that has stuck with me because it seems to tap into an essential truth.

“Fear is the mind-killer.”

Fear is the basis of Michele Bachmann’s appeal, and that of most of the right-wing punditry. It’s also frequently used by those at far left, as well, though with different objects, obviously. It seems to me, as an old white guy who’s never had a gay moment in his life, that – if it’s the institution of marriage, a committed, loving relationship, you value – then the sexuality of the marriage partners ought to make no difference whatsoever. Arguments against same-sex marriage that rely on the inability to have children, or on disgust with “unnatural” sexual practices mostly illustrate the prejudices of those who make them.

I think Hiram Foster’s comment is spot-on. Public opinion on this issue is changing, especially in younger demographic groups, and those opposed to that change want to carve their particular prejudices into the state constitution before the majority opinion swings so far the other way that their prejudices are deemed obsolete or irrelevant by the citizenry as a whole.

Why don't we remove the government from this equation altogether? The only reason marriage is a political issue is because the government is involved.

Let marriage be the business of the people getting married, under whatever auspices they choose, within whatever community they choose. The government shouldn't be recognizing or favoring anyone's private relationships.

And I always tell Jason that Pro-Lifers already have equal right to never have an abortion.

Mr Lewis continues to perpetuate the notion that opposite sex couples are superior to same sex couples.

I also have to recommend Hiram Foster's comment #2. I would love to see/hear an amendment supporter's honest response to it.

It's sooo disappointing that this high-school debate level banality passes for intellectual discourse. How far we've fallen when thinly veiled bigotry pretends to be constitutional logic.

Willful ignorance, so common the farther right we look. Is anything more pathetic?

He might want to rethink that last item, however. Seems to me that "equal protection" in terms of tax brackets would mean equal rates--something we don't have in Minnesota at present. Oops. And BTW, what about those rich people who did not make their millions by the sweat of their brow (meaning most of them), but via inherited wealth and corporate sweetheart deals (Bush comes to mind)? Lewis seems to leave them out in the cold.

Lewis's form is pretty much reflex ultra conservative, regardless of facts. I tuned him out years ago when that became obvious. I've asked before in this space, why does anyone pay attention to his maunderings? And how is it that he so routinely gets printed?

The fundamental issue here is that, despite its superficial appeal, you do not "let the people decide" the fundamental civil rights of a minority group---they will lose almost every time. One of the functions of an independent judiciary is the protection of the rights of minorities from the tyranny of the majority. It's a safeguard built into our system of separation of powers.

Those who are anxious to "let the people decide" would do well to remember that most of us occupy a minority position on some parameter and that is only going to be more true in the future as the make-up of the United States evolves. Tomorrow they might wish for the judicial protections that they seek to deny others today.

Ray Schoch is right on. The only problem with his argument is that it is thoughtful, nuanced and complex. In my experience, those in favor of discrimination generally don't have the mental acuity to discern thoughtfulnes, nuance and complexity. They respond to 7-second soundbites.

I would challenge anyone out there to explain to me the real, actual harm that they would experience if a same-sex couple married. I'm not interested in hearing how same-sex marriage may offend the delicate little flower of your sensibilities. I want to know what actual, documentable harm would be the result of same-sex marriage. So far, no one has been able to show me any.

It's not moral.

Jason...who?

Far beyond or beneath the Constitutional question is the question what is the Strib thinking hiring some of these great minds ? Lewis is out of work maybe we can get him for cheaper then Kersten mix him with Will and we'll be all set in our Commentary section. And to think of the talent this newspaper lost !

Anne, I don't share your pessimism. If the anti-gay rant does make it to the ballot, the signs are that it will lose. Right now, the majority (54%) of voters oppose it. Yea verily, there will be weeping and gnashing of teeth, and it won't be the gay community.

To Will @16:

I've seen the polls, too, but the fact that Minnesota may be the exception that proves the rule doesn't change the principle that civil rights should not be put up to majority vote. I don't often quote Jesse Ventura with approval, but as he said on Larry King a while back, "If we did that, we'd still have slavery."

To those who think it's okay to have the majority decide for the minority:

Just wait, pretty soon you white boys (especially the boys) will be the minority [you already are in some communities] -- then let's give the non-white majority and the women [who are already the majority] the right to vote on YOUR rights!

Nathan (#5)
I agree.
If society decides that it has an advantage in granting couples favored social or economic status, let it define civil unions (with all constitutional protections) to do this.
Marriage, on the other hand, should be left to the churches, with no economic issues involved.

Let them do it!

This argument is a mockery. Seriously, we are the nation that boasts its tolerance, but when it comes to gay people the intolerance is plain to see. I've recently watched a video made by my gay friends on their wedding in NYC (I have converted mp4 to mp3 http://mp4tomp3converter.org/ to improve the quality), and it was so amazing to see them there, they were so happy to get married! I mean that these people love each other. We accept gay people's rights for meetings, adoption of kids, we give them jobs, so I wonder why do we still so much against their marriage? Weird...