In response to a post about Texas' ban on same-sex marriage
at Hemant Mehta's Friendly Atheist blog, a commenter called Vas said “Maybe next Texas will decide that gay people are only 3/5ths of a person, or not even human.” That set the wheels in my head to spinning.
The 3/5ths reference is, of course, from Article I, Section 2 of the Constitution:Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.
The 14th Amendment changes that:Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
So, let's say that since states have made laws abridging the privileges of lesbian and gay citizens, denying to them equal protection of the law, and since states cannot do that to persons, then lesbians and gays are not persons and should not be counted when apportioning Representatives to the states. Exceptions could be made in those states which do not abridge the privileges. Or we could say that homosexuals are in rebellion, because that sounds cooler, in those states where they are treated unequally and again they don't get counted toward the apportionment.
I wondered if this would make a difference. Not that fucking with the census is a good idea, but it's an interesting thought experiment or an entertaining flight of fantasy. Here's the criteria: Connecticut, Iowa, Massachusetts, and Vermont allow same-sex marriages, New Hampshire will beginning January 1, 2010. Oregon and Washington have domestic partner laws which afford all the rights of marriage, but call it something else. I'm not going to get hung up on the word. New York recognizes same-sex marriages but does not perform them (That has to be the stupidest of all possible positions on the subject – recognize their rights, but make them spend the money for a wedding elsewhere.). These states count everyone; the rest count only the straights.
I took a Census Bureau estimate of 2010 population from here
I got estimates of LGB population
from The Williams Institute on Sexual Orientation Law and Public Policy at UCLA.
The Census Bureau also gave me the rules of apportionment
I calculated the apportionment using the Census Bureau's projections for 2010. These numbers aren't likely to be accurate to how things will shake out after the census, but they're the numbers I had. Then I calculated again after subtracting the percentage of population estimated to be LGB by the Williams Institute. The change was minor, but appreciable. Four seats changed; California lost two seats due to its large uncounted population*, while Texas and Georgia each lost one. The states that gained these seats were Massachusetts, New York, Oregon, and Washington, all of which were allowed to count every head.
So in the world I've created for this experiment, where representation is based on the number of those represented, there would be a small shift of power toward the states that extend equal protection of the laws. So then we can see that in the real world there is a power shift toward states that abridge the privileges of its citizens.
I don't think my experiment showed me anything new, just another reason why unequal rights is a noxious idea. Something I can bring up when talking politics with friends. But adding to the discussion of rights can only be a good thing. It also kept me busy for a while. I'll call it a success.
* In this experiment, California's gay population accounts for a swing of three seats. If Prop. 8 had been shot down, California and Massachusetts would have gained the seats lost by Texas and Georgia.