The 14th Amendment on Trial in Baltimore and the Supreme Court
Tuesday, April 28, 2015 may go down as a watershed moment in the history of American civil rights. At the Supreme Court, the justices heard oral arguments in a set of cases which may decide whether or not all Americans have an equal right to marry. Less than 50 miles away in Baltimore, demonstrators are demanding equal justice from a police department with a disturbing record of brutality towards the city's African-American residents.
At stake is nothing less than this: do we Americans actually mean what we say in our defining national documents? Do we affirm, as the Declaration of Independence states as a self-evident truth, that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness?" And 150 years after the end of the Civil War, are we committed to the full realization of the 14th Amendment's promise of equal justice for all?
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.
Despite the strong support for federalism expressed in some of his questions during Tuesday's Obergefell v. Hodges hearing, Justice Anthony Kennedy has advanced due process and equal protection arguments in two decades of decisions recognizing the rights of LGBT Americans. The Washington Post noted of Kennedy's 2013 majority opinion in Windsor striking down the Defense of Marriage Act's ban on federal recognition of same-sex marriage.
"DOMA writes inequality into the entire United States Code," wrote Kennedy, who was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Withholding federal recognition of same-sex married couples places them "in an unstable position of being in a second-tier marriage," Kennedy wrote. "The differentiation demeans the couple, whose moral and sexual choices the Constitution protects . . . and whose relationship the State has sought to dignify."
Needless to say, Justice Antonin Scalia completely disagrees. In his reading of the 14th Amendment passed in 1868, upholding the Voting Rights Act's "pre-clearance" provision would have constituted the "perpetuation of racial entitlement." In 2013, Scalia argued that the 14th Amendment wasn't "only for the blacks," but provided the perfect weapon for those crusading against affirmative action:
My goodness, I thought we've-- we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only the blacks. But I thought we rejected that. You say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
By the end of this term, we'll learn whether or not the Supreme Court believes the 14th Amendment protects gay Americans as well. Meanwhile, the true meaning of "due process of law" and "equal protection of the laws" is still being determined in the streets of St. Louis County, Missouri, Cleveland, Ohio and Baltimore, Maryland. Until then, it's worth recalling the words of Abraham Lincoln written in 1855, years before America's "new birth of freedom" was purchased when every drop of blood drawn with the lash was paid by another drawn with the sword:
I am not a Know-Nothing. That is certain. How could I be? How can any one who abhors the oppression of negroes, be in favor or degrading classes of white people? Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that "all men are created equal." We now practically read it "all men are created equal, except negroes" When the Know-Nothings get control, it will read "all men are created equal, except negroes, and foreigners, and Catholics." When it comes to this I should prefer emigrating to some country where they make no pretence of loving liberty -- to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocracy [sic].
One hundred sixty years later, we're about to find out if the promise of the 14th Amendment passed three years after President Lincoln's assassination is closer to being realized. As Tom Donnelly explained in Slate, "This sweeping, universal language means what it says: It protects all persons from discrimination; whether black or white, woman or man, gay or heterosexual."
Let's hope so.