Right to "Vote with their Feet" Odious

This article originally appeared in the Las Vegas Review-Journal.

On November 26, a federal district court ruled against eight same-sex couples seeking the freedom to marry in Nevada. In the case, the plaintiffs argued that Nevada's current law—which excludes same-sex couples from marriage by relegating them to the second-class status of domestic partnership—violated their right to equal treatment under the U.S. Constitution.

In a December 4 editorial, the Review-Journal defended district court Judge Robert Jones' decision by adopting his assertion that the legal question presented was not about "the wisdom of providing for or recognizing same-sex marriage as a matter of policy." Rather, the question was one of state sovereignty. The editorial argued that that "the several states must retain authority to establish different sets of laws best suited to their residents," an authority granted to them by the federal Constitution. Most odiously, the editorial reasoned that state citizens who object to the ban "may 'vote with their feet' by relocating  to jurisdictions with legal codes that better suit them." In other words, if you're a gay couple who wants to get married, you can just pick up and move to another state. The Equal Protection Clause of the Fourteenth Amendment need not apply to you.

The editorial sets up a straw man argument that is easily rejected. Objecting to the claim that Judge Jones was "wrong on the law," the editorial points out that Jones' decision upheld "not merely 'the law,' but the Nevada Constitution as recently amended by Nevada voters." The editorial then goes on to caution that the "planks of a constitution enacted by votes" should not be "tossed out willy-nilly"—even if those planks are the kind that only dead men walk down. The questionable DOMA provision of the Nevada Constitution stands as the editorialist's best proof that state sovereignty should be upheld.

Justifying Jones' decision by making an argument about Nevada's constitution is insufficient rhetoric at best, however. The author of the editorial sorely needs a lesson in history: Only 17 years ago, the Supreme Court of the United States struck down a provision of Colorado's constitution in Romer v. Evans because—as in Nevada—Colorado's provision unfairly discriminated against a class of citizens based on their sexual orientation. Viewed from the historical vantage of Constitutional case law, Nevada's "defense of marriage" amendment is hollow and irrelevant. It is unconstitutional to begin with and cannot be used to justify further assaults on the Nevada citizenry's rights under the Fourteenth Amendment.

Further, while the federal Constitution was indeed established to grant to the states the ability to "establish different sets of laws," the Fourteenth Amendment has, since the time of the Civil War, invalidated any state law that treats one group of citizens as second-class citizens. Most of the citizens of Virginia, among a number of states, supported the anti-miscegenation laws that forbid interracial marriage during Jim Crow. But in Loving v. Virginia, decided in 1967, the Supreme Court ruled these laws unconstitutional both because they were based on racial discrimination and because marriage is a fundamental right. How easy would it be to supplant "racial" with "sexual orientation" in this sentence from Justice Warren's unanimous opinion in Loving?: "There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause."

However one assesses the merits of the claim that a state ban on same-sex marriage denies a group of citizens access to a fundamental freedom for basically unpersuasive reasons, there is no room for doubt that discrimination in violation of the Fourteenth Amendment is the core issue behind marriage equality cases. Equal protection has little to do with arguments about the supposed disadvantages to public policy which marriage equality is thought to present. Equal protection remains a federal right regardless of whether it imposes upon the convenience of state policy.

The editorial makes note of the plaintiffs' claim that same-sex couples are already discriminated against by hospital officials and police officers. The writer therefore tacitly admits to the pervasive history of disadvantaging LGBTQ individuals, a history which includes the now-repealed Don't Ask, Don't Tell military policy. This history explains how a basically conservative judge, Justice Sandra Day O'Connor, concurred in Lawrence v. Texas' 2003 ruling which overturned an anti-sodomy law that banned only same-sex conduct. Justice O'Connor reasoned that the Texas law was invalid because it discriminated against citizens on the basis of their sexual orientation. Her decision was not rooted in a presumption that judges should assert their own views of public policy, and she simply rejected that the remedy to the law's unfairness was for Texans to "vote with their feet." Citing Romer, she wrote: "the Equal Protection Clause prevents a State from creating 'a classification of persons undertaken for its own sake.'" Federal interest in equal protection thus trumps state interest in classification.

It is the role of our courts to enforce the federal Constitution. The courts have preserved the rights of all citizens and the guarantee of equal protection of the laws. Cases like Brown v. Board of Education, which set the precedent for abolishing the legal framework of racial segregation that characterized the era of Jim Crow, led to the holding in Loving v. Virginia. In each of the cases referred to—BrownLovingRomer, and Lawrence—the Court struck down laws across the nation that infringed on constitutional protections. These decisions illustrate the legacy of judicial intervention when governing majorities ran roughshod over the rights of vulnerable minorities.

We should never forget that the founders of the Constitution did not allow constitutional amendment by referendum for a good reason. The Constitution was written to include an anti-majoritarian dimension. We should never assume that laws supported by a majority of citizens are therefore consistent with the duties imposed by the Constitution.

— With additional reporting by Gigi Generaux, who would like to thank News Editor Kristy Totten of Las Vegas CityLife for her help with the research for this article. 

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