The bad news: only 14% of the US population lives in a state that recognizes the equality of gay citizens.
The Fourteenth Amendment, Section 1: ...No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
I really don't think this could be any clearer, and yet, again and again, people find ways to make those words mean that certain types of inequality are okay.
Plessy v. Ferguson was a case about Louisiana's law that required blacks and white to use separate (but equal) railway accommodations. One summer day in 1892, Homer Plessy, 1/8 black decided to sit in the "whites only" car and tell the conductor that although he was legally black, he refused to sit in the "blacks only" cars.
This act of civil disobedience was intended to provoke his own arrest and challenge the law. Mr. Plessy lost the case, but continued to appeal. Ruling against Mr. Plessey, the Supreme Court of Louisiana held:
The object of the Fourteenth Amendment was undoubtedly to enforce the absolute equality of the two races before the law, but in the nature of things it could not have been intended to abolish distinctions based on color, or to enforce social, as distinguished from political equality, or a commingling of the two races upon terms unsatisfactory to the either...If the two races are to meet upon terms of social equality, it must be the result of voluntary consent of the individuals.
By 1896, the case was finally decided in the Supreme Court of the United States, which held, 7-1:
1. The 14th Amendment only applied to civil rights, not social arrangements.
2. There is no right to ride a particular railway car; segregated railway cars are social arrangements.
3. Since no Constitutional right has been implicated, Louisiana's law only requires a rational basis to be held Constitutional.
4. Louisiana's longstanding tradition of racial segregation is an adequate rational basis.
In summary, Justice Henry Billings Brown wrote:
We consider the underlying fallacy of the plaintiff's argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
The Plessy decision is infamous insofar as "separate but equal" became a valid legal doctrine that persisted another 58 years until Brown v. Board of Education properly held it unconstitutional.
The case is famous for Justice John Marshall Harlan's dissent, where he wrote:
...in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law.Justice Harlan stole the "color-blind" line from Mr. Plessy's attorney, Albion W. Tourgée, a civil rights crusader, soldier, newspaper columnist, novelist, farmer, lawyer, judge, Congressional candidate, carpetbagger, and all-around badass who defended Mr. Plessy pro bono.
So to recap, in analyzing the Equal Protection Clause, conservative judges will decide:
• The majority should decided how much equality minorities deserve.
• When we don't want minorities to have equality, we'll apply "rational basis" and yell about "our traditions!"
• The obvious bigotry in our enforcement of discrimination doesn't mean we're bigots.
As a country, we really don't learn, do we?