As the Republicans met last week in Tampa and nominated two men to lead their ticket who are opposed to same sex marriage (and the Democrats do the opposite this week), it is a good time to recognize that this kind of overt discrimination against gays should be no more tolerable than discrimination based on race, religion or gender. Many Americans, including Mitt Romney and the CEO of Chick-fil-A, have no difficulty making public statements suggesting that gays and lesbians should have less legal rights than other Americans. But no public official or CEO would ever argue that African-Americans, Hispanics, religious minorities, or women don't deserve full equal rights under the law. But there really is no difference: sexual orientation discrimination is wrong and should be just as condemned and outlawed as any other type of discrimination.
In 1996, Justice Scalia wrote one of his typical vitriolic dissents arguing that the Supreme Court had no business stating that "opposition to homosexuality is as reprehensible as racial or religious bias." Justice Scalia raised the right issue but provided the wrong answer: Is discrimination against gays and lesbians as morally problematic as discrimination based on race? The answer is yes.
It is an important question because over forty states ban same-sex marriage, and more than half the states allow discrimination in employment against gays and lesbians. Congress has refused to add sexual orientation to the list of traits included in our most important national discrimination laws, and a number of states still either prohibit gays from adopting children or make it enormously difficult. The issue of marriage equality for gays and lesbians almost surely will be before the Supreme Court next term and ultimately the question is whether there is any legitimate interest in discriminating against gays and lesbians.
If it would be unthinkable to treat people of color or religious minorities this way, why isn't the same true for gays and lesbians? The Supreme Court has on many occasions explained why racial discrimination is both immoral and unconstitutional and examining those reasons sheds light on why discrimination against gays and lesbians also should be intolerable.
First, a person's race is simply and obviously irrelevant to whether he or she deserves equal rights under the law. As Martin Luther King said so eloquently, people should be judged by the "content of their character," not by "the color of their skin."
The same rationale applies to gays and lesbians. A person's sexual orientation should have no bearing on how she is treated by the government. As long as a person's sexual activities are legal and consensual, why would they be relevant to how a person is treated under the law? To state the obvious, there are moral and immoral gays and lesbians, just as there are moral and immoral heterosexuals. A person's character should be determined by factors other than his sexual orientation, and his sexual orientation should play no role in determining his legal status.
The Court also has said that racial discrimination is impermissible because there has been a long history in the United States of overt public and private discrimination against people because of the color of their skin. The same is also true for gays and lesbians. In fact, African Americans and other people of color, as well as religious minorities, have received full formal legal protections in this country, but gays and lesbians can still be denied jobs, adoptions, and marriage benefits in most states.
The Supreme Court has also said that discrimination based on race is almost always unconstitutional because people of color have little influence over the electoral process. The same is obviously true for gays and lesbians who have been unable to persuade Congress to give them full equal rights and cannot get married in over forty states.
Finally, the Supreme Court has repeatedly observed that the government should not treat people unequally because of immutable characteristics, such as race. There is still a debate in this country over whether sexual orientation is a choice or something people are born with. If orientation is indeed immutable (as recent evidence suggests), then it would be completely unfair to deny people equal rights because of an inherited characteristic. But, even without a clear answer to this question, a person's sexual orientation simply tells us nothing about his or her fitness to be a teacher, parent, or spouse. Millions of Americans make private sexual choices that many other Americans would never make, such as having affairs or watching pornography in the privacy of their home, but these people have the same legal rights as people who make more "conventional" sexual choices. Moreover, embracing a religion is a choice, not an immutable characteristic, yet that choice is fully protected under the law.
Fifty years ago, people who argued that school districts should remain racially segregated or that blacks and whites shouldn't be allowed to marry wore their racial prejudice on their sleeves.
Now, those who would deny gays and lesbians the same legal rights as heterosexuals couch their arguments in less egregious sounding phrases like "traditional values," and "protecting our children," but what they are really saying is gays and lesbians don't deserve the same rights as heterosexuals because they are inferior or different. The debate would be more honest if those against full rights for gays and lesbians wore their prejudice on their sleeves. Religious or moral objections to marriage equality are no more deserving of respect than religious or moral objections to desegregation.
Those who hold such a bias should absorb one of the lessons of the Fourteenth Amendment to the United States Constitution which prohibits States from denying "any person," the equal protection of the laws. Gays and lesbians are "persons" and it is well past time they are given the same protections as every other "person." Anything else is pure prejudice and just as unjustifiable as prejudice based on skin color, religion, or national origin.