Marriage equality and corporate litigation

Very soon, the Supreme Court will issue its ruling in Obergefell v. Hodges, deciding whether the Equal Protection Clause of the Fourteenth Amendment ensures every American an equal right to marry, regardless of sexual orientation. It’s easy to forget that the Supreme Court actively condoned discrimination against gays and lesbians until a landmark 1996 decision called Romer v. Evans. In a bizarre turn of legal fate, however, another group has recently begun twisting the Romer decision to suit its own purposes: corporate business interests, which have tried to equate their desire for unfettered economic power with gay and lesbian people’s fight against discrimination. 

Romer concerned a Colorado state constitutional amendment that banned cities and schools in Colorado from adopting policies against discrimination on the basis of sexual orientation. Writing for the Court, Justice Anthony Kennedy ruled that the law was inexplicable “by anything but animus” toward gay and lesbian people. As he explained, the Constitution’s Equal Protection Clause does not permit laws based only a “desire to harm a politically unpopular group.” The decision marked a groundbreaking victory for the nation’s gay and lesbian community, in many ways paving the legal road toward marriage equality.

{mosads}But now multinational corporations have begun invoking Romer and the Equal Protection Clause in challenging common-sense public health, environmental, and even minimum wage laws, portraying themselves as victims of “animus,” as if they were an unpopular minority group. This argument may seem ridiculous. But it has become an increasingly popular tactic in recent cases, and unfortunately it sometimes succeeds.

Last year, citizens of St. Louis qualified enough signatures to put an initiative on the ballot limiting tax breaks for fossil fuel producers. Corporate lawyers sued to block the initiative on equal protection grounds. Amazingly, a St. Louis judge agreed. Citing Romer, the judge described the initiative—a reduction in corporate welfare to conserve public funds and promote a sustainable energy future—as “legislation that is designed to ‘fence out’ selected classes from the full rights of citizens.” He concluded that the initiative was motivated by “antipathy toward any fossil or nuclear fuel producer” and acted only “to punish enterprises which deal in disfavored fuels,” and struck it down under the Equal Protection Clause.

According to the corporate Romer analogy, “discriminating” against coal and gas companies is no different than discriminating based on sexual orientation, and St. Louis voters’ environmentally forward initiative was just anti-corporate bigotry.

If corporations can claim the same “animus” protections as disfavored minorities, the Equal Protection Clause can be skewed to undermine the interests of the very people it was intended to protect. In the last two years, corporations have cried “animus” when challenging fracking regulations in New Mexico, public disclosure requirements for pesticide and genetically-engineered seed application in Hawaii, and even the newly passed living wage law in Seattle.

Luckily, some judges have begun to push back against this corporate legal strategy. Upholding Seattle’s minimum wage law, a federal judge rejected the corporate claim that the law was based on “animus” against certain low-wage businesses. And in dismissing Romer’s applicability to New Mexico’s fracking case, another federal judge reminded us that “while corporations are persons for constitutional purposes, they still are not real human beings, deserving of respect and human dignity.”

But corporations believe they’ve found a crack in the law that they can exploit. They’ve appealed the decision in Seattle, and further “corporate Romer” litigation is likely.

The trends put in motion by Romer may well lead to nationwide marriage equality, an achievement that seemed unthinkable just a few years ago. But if corporations are permitted to twist equal protection law, the same ruling that launched such progress toward the ideals of dignity and equality for every individual could work to undermine those very principles. The same Justice Kennedy who wrote Romer also wrote the Court’s decision in Citizens United v. FEC, where he described corporations subject to regulation as “disfavored associations of citizens.”

Let’s hope that the Court’s Obergefell decision recognizes the equality and dignity of human beings, without giving any more ammunition to the heavily lawyered corporate campaign to claim constitutional rights. Because the Constitution isn’t about corporations’ “rights”—it’s about ours.

Fein is the legal director at Free Speech for People. Gifford is a senior at Stanford University. 


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