A Tribute to my Love – Justice O’ Connor

            It was difficult for me to see Sandra Day O’Connor leave the court after being its most influential member as the “swing vote” for almost two decades, but she saw Lawrence v Texas (and likely same-sex marriage) as an equal protection issue instead of a substantive due process issue as the majority of the court did. In her concurring opinion O’Connor wrote  “The Equal Protection Clause of the Fourteenth Amendment “is essentially a direction that all persons similarly situated should be treated alike.” Cleburne v. Cleburne Living Center, (1982). An obvious obstacle for further cases will be to define whether same-sex couples are “similarly situated,” but at least further rulings may be less ambiguous.

 

 In addition, O’Connor held that “We have consistently held that some objectives, such as “a bare … desire to harm a politically unpopular group,” are not legitimate state interests. Department of Agriculture v. Moreno. This point merits consideration as on the whole it appears a mere vote, such as proposition eight in California, may not hold up to a challenge which merits strict scrutiny. If a challenge of Proposition 8 finds – as the Massachusetts Supreme Court did – that not allowing same-sex couples the right to marry creates “second class citizens” then the fact that “The Equal Protection Clause ” ‘neither knows nor tolerates classes among citizens.’ ” (Plessy v. Ferguson (1896)) may play a role in the Supreme Courts’ decision.