President Clinton’s Department of Justice is urging the Supreme Court to make a momentous change in the law governing allowable gender distinctions between the sexes.
If the department succeeds the result would be to outlaw almost all distinctions between men and women in programs and institutions run or aided by government. That would include public and private single-sex schools, single-sex prisons, the Girl Scouts, and Boy Scouts. Laws prohibiting homosexual marriages would also be stricken from the statute books.
Few people are aware of the cultural disaster the department seeks. Without public debate or announcement, the Justice Department has asked the Court that the Virginia Military Institute accept female cadets according to a “strict scrutiny” standard. The general public does not know what that means—it would mean the death knell for single-sex organizations.
The Court has adopted three levels of scrutiny when distinctions made by government are challenged under the Equal Protection Clause of the Constitution. When the Court elects to use strict scrutiny, by far the most severe test, the government’s distinction is certainly about to be held unconstitutional. As Judge Robert Bork has said, strict scrutiny is less a test than a conclusion. The legal burden of government to prove its interest in maintaining gender distinction is almost impossible.
If this case is decided in favor of unisex living arrangements, there will be no legal justification for treating the sexes differently. There will be legal protection for unisex bathrooms, unisex locker rooms, sports facilities, and competitions. Under “strict scrutiny” it would be difficult for governments to show their interest in single-sex toilets. There will be less reason to keep women out of combat, although the Justice Department has argued for an exemption on this point. Single-sex schools and colleges will no longer be tax-exempt, and they soon will not exist. Several Catholic colleges have signed an amicus curiae brief with the government under the illusion that they will be spared the ax.
There will be no legal barriers to gay marriage and gay adoption. Denial of homosexual marriage rights would be seen as sexual discrimination. Public debate will be over the redefinition of marriage, and the Church’s position as teacher of morality will be weakened by what the law allows.
With so much at stake in these changes, the Department of Justice has made no attempt to educate the public as to its agenda. There is a reason for that. They know that most Americans would not accept these changes. People need to understand that with a single decision, just like Roe v. Wade, the Court could make sweeping changes in our social life that would be difficult to undo. Eliminating the gender distinction is not a matter for the Court. Cultural and moral issues should be debated by the American people and decided by the legislature. The Clinton administration is trying to enact a paradigm change in our legal system by pushing this controversial issue through the courts. Once a powerful decision like this is made, it will soon apply to every area of life, much the way the right to privacy in Griswold v. Connecticut became the groundwork for Roe v. Wade.
There are still several things Catholics can do to bring this issue to more public attention. We can write to President Clinton and ask him why he is in favor of strict scrutiny and why he has not discussed this issue with the American people. Presidential candidates should also be questioned. We can also write our newspaper editors and ask them why they have not written about so important a cultural issue.