Insult and Injury

I've just read the Department of Justice's amicus brief from Hollingsworth v. Perry, the 2013 Supreme Court case in which the Court had an opportunity to declare a constitutional right against discrimination in state marriage laws against same-sex couples, but declined to do so on grounds of a technicality that, let's be honest, they went searching for. In it, the United States government goes through the arguments asserted by the proponents of Proposition 8, the California initiative which spent about four years banning gay marriage in that state before getting tossed out by the lower courts in this case, for why the Proposition is constitutional, and shreds each one of them. It's a tour de force read, as legal briefs go, with a handful of what are basically applause/laugh lines that are quite good. Of course, shredding the arguments of anti-gay marriage advocates is not exactly tough work. But there was one point made a few times in the brief that I thought was very interesting: any argument the petitioners (that's the pro-Prop 8 people) could advance suggesting a material interest in preserving the exclusivity of marriage to straight couples is severely undermined by the fact that California law under Prop 8 did not deny to gay couples with civil unions any of the material legal rights of marriage. It denied only the word "marriage." Therefore, the government argued, even if those asserted interests are legitimate government interests, the Prop 8 law does not serve those interests because it does not prevent gay people from doing the things it is claimed they shouldn't be let do. It only prevents them from getting the state to call what they're doing "marriage."

This gets at one little principle in the Equal Protection Clause that I think is interesting. Call it the "insult without injury principle": any time the state insults or demeans any person without doing them material injury, it will be acting unconstitutionally. I can't really think of any possible exceptions to this rule; it's almost a tautology if you follow the logic far enough. Insults are by definition (or at least by the Google definition I got from a quick search) disrespectful. Respect is one of the hardest words to define in the entire language, in part because we use it to mean so many related but slightly different things. The relevant meaning, I think, is the one about having due regard for the interests of another. To insult someone, then, is to disrespect them, and to disrespect them is to fail to give due regard to their interests in itself. Yes it is symbolic, but a lot of things are symbolic. And, moreover, because there is no injury involved we know that there is no compelling material reason for this insult. Insult without injury is really strong evidence that the insult is being uttered entirely for its own sake. That means that, when it offers an insult, the state is acting for the sole purpose of insulting someone, of being disrespectful and contemptuous. This I hold to be a violation of the Equal Protection Clause, and especially of the first section of the Fourteenth Amendment read as a cohesive whole as it ought to be.

Now, this principle as stated runs the risk of conveying a certain misimpression. The principle features an exception: it covers only those insults which are not accompanied by injuries. This exception could be seen as proving the rule, in the actual sense of that phrase, i.e. as implying that insults that are added to injury are just fine. That is not the case. What is the case, however, is that laws often do injury to the interests of some person or another, so simply showing injury as such cannot be sufficient to establish an Equal Protection Clause violation. Some injuries are violations, some are not. And I could imagine some injuries which the state has a significant interest in imposing upon certain persons which, either necessarily or in practice, convey an insult as well. That could sometimes be justified. For instance one could view the criminal justice system as an example of this: murderers, thieves, rapists etc. are, upon conviction, sent to prison for many years and formally declared criminals. This last part is, arguably, an insult, although I might argue to the contrary. Insulting criminals in this fashion does not violate Equal Protection, since it is a necessary component of the peculiar and necessary negative treatment given to criminals.

So no, Prop 8 would not have been more acceptable had it included material injuries to the legal rights of gay couples. Adding injury to insult does not get you off the Equal Protection hook. But declining to do so is a tell. There are times when the state may injure, and even times when it may injure and insult at the same time, acceptable, so a demonstration of injury or even of insult and injury is not enough all by itself to establish an Equal Protection violation. Because, however, the only possible motive in an insult unaccompanied by more material injury is the naked desire to insult, virtually any time that anyone can show they have been insulted but not injured by the government they will have made the entirety of the case for a constitutional violation.