So as promised, I have been mulling this over, I am still not sure what I think yet, but am going though it in my head and am now going to sort of do the net equivalant of talking out loud to myself.
My first thoughts are seperate but equal is not equal, this is born out to me by the images I have seen my entire life, such as ragged railroad coaches with substandard food for the blacks and nice cars with good food for the whites, crappy little bathrooms for the blacks and decent ones for the whites etc.. There was no attempts made to actually make things equal, one was given superior stuff to the other.
The law requires things to be equal. That was obviously not the case, at least to my eyes. So obviously to me, the seperate but equal, did not give equal.
I then move on to this part "I do not understand how a committed textualist (which is the philosophy it seems you are espousing) could accept the Brown decision (or Harlan's dissent in Plessy). The plain meaning of the words "equal protection of law" have nothing to do with psychological consequences or the badge of inferiority which is experienced by those who fall under it." And have a question. Why would you say that under a strict constructionist point of view that equal protection under the law would not mean equal protection from psycholgical consequences? If the whites were protected from that, should not also the blacks be protected from it as equal protection?
So, I am not seeing an issue with the Brown Case, or Harlen's disent in Plessy from a constructionist point of view. But I admit that my views are also coming from someone that was born at the very end of the civil rights movement and by the time I was old enough to understand things, this was the way it was, so I will forever look though those glasses.
Well I feel the same way about it being absolutely obvious that segregation can never be part of real equality. But I do wonder if that only seems obvious to those of us looking at the issue today because we have seen (either through our own experience or through history) the civil rights movement and hindsight after all is 20/20. My guess is that in hindsight issues of gay rights and equal protection are going to look very similar a few generations from now. So in general I am very suspicious of textualism or any kind of strict constructualism. I think what we take to be the plain meaning of a word or phrase is going to be heavily influenced by the context in which we live.
(So I'm wondering, for instance, if we gave people from another country/culture which has not had racial segregation problems like ours the text of the 14th amendment and then described de jure segregation to them and explained that it treated all races equally in all tangible ways, would they find that segregation to go against the words in the 14th amendment?)
I find the concern for psychological consequences to go beyond textualism because I just don't think that our normal understanding of "equal protection of law"--at least, our understanding had we not already known of the Brown and Plessy decisions--wouldn't include concern about psychological consequences. So I think the justices went beyond the text in considering that.
Now to the last part... This is where I am struggling the most, and maybe I am not understanding, maybe I have not evolved enough, who knows. Perhaps you can help me to see your side, perhaps not.
First as I have said all along, I am in favor of Civil Unions, so I am not fighting against you on that, I am just trying to wrap my head around this current discussion.
So questions. I can not marry or form a civil union with another male at this time either, so are you being treated unequally, if the law is applied to everyone? Is sexuality a basis for being a "protected class"? If you go with it being equal because no one can marry/form a civil union with their own sex, are there compelling reasons to change that law?
So in the case of marriage/civil unions being only available to male-female couples I think the same kind of psychological consequences/badge of inferiority is at work. It's true, of course, that both gay and straight people are equally banned from marrying someone of the same sex. So in the same way it was also true that black and white people were equally banned from riding in the railway car assigned to the other race. So in both cases, on the face of it, any particular individual is treated equally by the law regardless of whether they are gay or straight or black or white.
But as you said regarding the race cases, it's absolutely clear--to us now at least--that we have to look closer than just "on the face of things." The laws at issue in Plessy and Brown clearly send the message that blacks are inferior to whites, and in this case of school children this message was playing out in real psychological consequences. I think laws which deny same-sex couples marriage or civil unions do the same thing (we can see this, of course, by looking at the kind of rhetoric that many opponents of giving same-sex couples civil unions/marriage--the idea of "protecting the institution of marriage" seems pretty similar to the idea of "protecting the white race from impurity"). I think this is basically what the CT court said in the recent decision that the segregation of heterosexuals and homosexuals in marriages vs. civil unions created a clear--psychological I assume--harm to homosexuals.) My guess is that there is probably psychological research out there which could show similar psychological affects for couples (and children of couples) who are denied marriage/civil unions on account of their being a same-sex couple.
Now the protected class issue does throw a wrench in things when it comes to the level of scrutiny necessary to justify a law that appears to treat different groups unequally. As Bicker said the SCOTUS has not yet said that sexual orientation is the basis for a protected class (I say yet because if I were a betting person, I'd definitely bet on this happening in the future.) In terms of the states, the courts have said different things. I believe some state supreme courts have said that sexuality should be treated as a suspect class but others haven't.
If sexuality is a suspect classification, then laws which specifically affect gay people will be held to a higher level of scrutiny--either strict (like race) or intermediate (like gender). If it's strict scrutiny, then the law can stand only if it must have be aimed at protecting a compelling state interest. If sexuality isn't a suspect classification, then all that is necessary is for the state to have a rational basis for the law. And intermediate scrutiny requires something in between.
I think it is pretty clear that the compelling state interest test can't be met when it comes to marriage/civil unions. The most that anyone has really offered to try to justify these laws is an appeal to tradition (marriage has always been defined as one man, one woman--which is clearly false anyway); but tradition isn't a compelling state interest.
The rational basis test is pretty easy for a state to pass, but I believe in the NJ marriage/civil union supreme court case, the court couldnt even find a rational basis for deny marriage/civil unions to gay couples. The state basically admitted that it had no reason for denying those rights except tradition, and the court did not accept that basis as rational. (In rejecting it, they specifically pointed out that it was not rational to allow gay people to adopt children, to raise their biological children, to have foster children, yet then subject those children to significant disadvantages which come about because their parents are unable to be married.)
Personally I agree with the NJ court that the denial of civil unions cannot pass the rational basis test. Im not sure if denial of the word marriage itself (if completely equal civil unions were available) would fail to pass the rational basis test. But I also think that its quite clear that sexuality should be counted as a suspect class. I think it has just as good a claim to this as sex does, which is already a suspect class and is subject to intermediate scrutiny. And I dont think that denial of either civil unions or even the word marriage itself can stand on the intermediate scrutiny testthe state just doesnt have an exceedingly persuasive reason why it must only give mixed sex couples certain rights or why same-sex couples should have to have their relationships recognized without the word that the mixed-sex couples get. It seems like there is still a stamp of inferiority there like that at issue in Plessy and Brown.
Please feel free to respond to my ramblings, which is what they currently are as I work though this.
This is really the most important aspect to remember.
