But sexual preference has never been held to be a “protected category” (up till last year) even under the more liberal strands of S.C. jurisdprudence, whereas there can be no doubt that the authors of the Fourteenth Amendment had race (and possibly only race) squarely in mind in drafting the equal protection clause, given when and where they were compelled to draft it. Certainly to any realistic person it is difficult to imagine that they, or any jurist or legislator who wrote about equal protection after them for many a long year, spent a moment contemplating that the Amendment’s protections (a) would extend to a protected class of homosexuals (as opposed to blacks); and (b) thus extending, would make it “unequal protection of similarly-situated parties” for the state to deny that class the right to sodomy (or to “same sex marriage”), while allowing that class the equal right to “marriage” as historically and contemporaneously defined by the state.
Legally speaking, the anti-miscegenation argument was very “lousy” as to point (a) for sure, less obviously constitutionally forbidden as to point (b), at least on the historical record. The anti-same-sex-marriage argument is nowhere near as constitutionally ridiculous on point (a), and point (b), well, that’s what people are arguing for/against.
Guinastasia, it’s interesting that you mention children. Here’s another example of where the state (problematically in my view) indulges in gratuitous “sanctioning” or recognition of what are essentially interpersonal choices. As I’ve mentioned before, they do this with heterosexual marriage, as an exception to the usual rule that the government has no busines conferring benefits or special status on random (or not so random) groups of persons based on their status. Much of society, though, was apparently swayed to make an exception and allow the government to spend (waste?) it’s time and resources to aid/lionize heterosexual marriage (but not in the interest of, say, handing out federal Best Friend Medals or congressional Grandma’s Little Angel free parking passes). For the same reason, government’s also chosen to privilege having children, in some respects, by recognizing parents’ legal status as “next friend,” but also by spending cold hard cash on tax exemptions and child care/tuition credits for rugrats. At least as to childless married couples, the government has judged that they would be “getting something from society but not giving back” if they got these benefits without having rendered the (dubious) societal benefits of popping out the ankle biters who are the predicate for the benefits – and thus the childless couple can never get such benefits if they choose to remain in a childless union. Unconstitutional? Rotsa ruck winning that battle, even though this policy likewise penalizes people for decisions squarely founded in sexual/reproductive choice.
Are there other cases in which the government singles out particular groups for special rewards/recognition based on the character of their relationship or of their conduct? Sure, lots. Ireland (not subject to the U.S. Constitution, but imagine the U.S. adopted a similar law) makes (made?) artists’ earnings free. You say you’re a carpet installer, not a sculptor? Tough luck, you’re paying full freight. You studied engineering? Great, that’s a special skill that enhances society’s productivity, here’s your H1B visa, go to the head of the line for lawful entry to the U.S. You took courses in music appreciation? Yeah, we’ll get back to you around 2020. Or . . .ah, Mr. Immigrant, what a pleasure to see you. Did you by chance choose to marry a lovely lady? Yes? Is she from your home country? Oh, sorry to hear that, you’ll both have to wait for citizenship. Wait, I misheard you, she’s from the U.S.? My mistake – you’re a citizen (or will be soon), with all the attendant benefits. What’s that you say? Your “wife” is actually a man to whom you were joined in a homosexual relationship customary to your tribe, and with whom you’re having rampant homosexual sex? Sir, I’m sorry, that’s not the kind of “marriage” that confers marital status under our laws. But wait . . . I misread your application and that’s not the wife you were referring to at all; here you specify Ms. Bloggs, whom you legally married in St. Patrick’s Cathedral, because it’s also customary in your culture for men to have (unconsummated) heterosexual marriages while living on the “down low” with their homosexual partner? Well sir, as long as you can show us the marriage certificate for the heterosexual marriage, we’re not in the business of policing your downlow conduct.
The point is that any number of chosen (or even not-“chosen”) combinations of affiliational and conduct-based status could substantially affect Mr. Immigrant in that example, depriving him (or granting him) preferential treatment depending on the concatenation of circumstances. Either we say the state has no business ever conferring special economic/immigration/status rights on persons based on their personal affiliation (which, from the example above, is very clearly a policy question, not a preferential mandate, or our entire system of family, tax, and immigration law would be facially unconstitutional). Or we recognize that we’ve always singled out “special” benefits-receiving classes, and try to persuade a majority of our fellow citizens that “homosexual marriage” ought to join those classes.
