In a moment of insight in 1868, the people of this country enshrined into the Constitution a principle: all persons ought to have equal protection under the law. We should stress that it is a principle, like most important laws. Those who ratified the 14th Amendment did not take upon themselves the burden of imagining and enumerating every possible way some future society might conceive of denying a group of people equal protection under the law; instead, they said that doing so will not be permitted under the Constitution.
In 1880, someone said, "wait a minute, aren't the laws some states have prohibiting black men from serving on juries a violation of the equal protection idea?" It is the Supreme Court that is tasked with ultimately interpreting these matters, and, after hearing arguments, it said, "although we didn't realize it in 1868, it is clear that keeping black men off of juries is a violation of equal protection." Those laws fell. We didn't wait for each state to decide that it would be so. In fact, majorities in some states would have continued treating black men unjustly in this regard. Fortunately, we have a Constitution that protected them.
In 1927, someone said, "wait a minute, aren't the laws permitting only white people to vote violations of the 14th Amendment?" They were, of course, and they were struck down by the Supreme Court, even though it was democratic majorities in certain jurisdictions who were wieldly the law unjustly.
In 1938, someone said, "wait a minute, aren't states that deny black people admission to law schools violating the equal protection idea?" While those who ratified the 14th Amendment were not thinking about law schools, the Supreme Court said rightly that it was. Thus, the states were not allowed to decide for themselves if they would restrict legal education to whites; fortunately, the people of this country had constitutional protections on this matter.
In 1942, someone said, "wait a minute, isn't the forced sterilization of certain criminals a violation of the equal protection clause?" The Supreme Court said yes, and we didn't have to hope that the states that were abusing people in this way would stop on their own, because we have a Constitution to protect people from these kinds of abuses.
In 1953, someone said, "aren't segregated schools a violation of the equal protection clause?" It turns out they were, and they were eliminated, despite the majorities who enacted and maintained them.
In 2003, someone said, "aren't laws specifically criminalizing the sexual activities of homosexuals violations of the equal protection clause?" They were, the Supreme Court decided, and they were struck down. Homosexuals in Texas did not have to wait for the majority of Texans to stop using the law against them, because they were protected by a Constitution.
In 2015, someone said, "aren't the laws denying marriage rights to homosexual couples violations of the equal protection clause?" The Supreme Court heard arguments and determined that they were. And homosexual couples who were living under unjust laws did not have to wait around hoping that their oppressors would have a change of heart, because they have a Constitution that protects them.
Perhaps at some future point we will discover an alien race of peoples. Those who ratified the 14th Amendment certainly didn't expect that. And I am sure there will be jurisdictions on earth where the impulse is to make them second-class citizens, and to wield the law as an instrument of injustice against them. If the United States happens to still be around, though, we will be able to say, "wait a minute -- doesn't the 14th Amendment require that all persons receive the equal protection under the law?" And we will be right.
I have heard a number of people object to Obergefell v. Hodges (the decision that came out last Friday) on the grounds that the authors of the 14th amendment never intended it to apply to non-heterosexuals. While accurate, this is no objection: our forebears need not be omniscient to enact a worthwhile principle which can then be worked out as we come to better understand injustices.
Likewise, I have heard a number of people object that Obergefell v. Hodges circumvents the "will of the people" and the democratic process. This objection misses the point entirely: the purpose of Constitutional protections is to apply in precisely those cases where the "will of the people" in some jurisdiction becomes -- as it often does -- unjust. Democratic processes are not immune from the threat of tyranny, and majorities can abuse their power just as much as dictators. This is why the 14th amendent exists. If Obergefell v. Hodges is objectionable because it asserts constitutional protections for those who are victims of unjust majorities, then it is not so much nine judges in 2015 that are the problem, but the Constitition itself.
Obergefell v. Hodges is a cause for celebration, not just because the outcome is a victory for justice, but because the process is an example of the United States legal system operating at its best.
4 comments:
Neither the Bill of Rights, nor the Constitution cover marriage (gay or otherwise) because they are moral issues. Moral issues change as the morality of people change and as local and state laws allow. The above stated examples cover physical bodily injury or political issues, both of which would be covered in these documents.
Whether the will of the people is unjust (as I agree it does happen) in this particular scenario, is a matter of opinion. This is why it is important for the people, state by state, to decide.
Regarding your 1st point:
It seems to me that 14th Amendment issues such categorically denying voting rights to certain races and prohibiting certain consensual sexual acts are moral issues. More broadly, many clauses in the Constitution (including the Bill of Rights and other amendments) seem straightforwardly moral -- the free exercise of religion, to name just one example.
Whether or not the Constitution ever has moral implications, though, my argument rests only on a very specific legal issue: whether governments grant the certain legal protections and privileges that go under the name "civil marriage" to people equally. The Constitution requires them to do so. Until last week, however, non-heterosexual couples were being treated unequally with respect to these legal protections, in violation of their Constitutional rights to the contrary.
(Now, if a state were to decide to divest itself of marriage laws -- cease issuing marriage licenses altogether and abandon marriage to churches and other social institutions, then there would not be a Constitutional issue. Whether this would be a good idea or not is a different question.)
Regarding your 2nd point:
Of course people have different opinions about whether it is unjust to deny certain groups of people the equal protections of the law. Those who held slaves were not of the opinion that it was unjust to do so, those who restricted voting rights to white people were not of the opinion that it was unjust to do so, those who work to disenfranchise homosexual couples from legal protections available to heterosexual couples are not of the opinion that is it unjust to do so, etc. It is precisely because there are differences of opinion that Constitutional protections are important.
But whether majorities in certain states were treating minorities unjustly, in the specific sense of denying them equal protection under the law, is not only a matter of opinion, but also a matter of legal analysis and juridical determination regarding actual statutes in certain states. There were still many states in which, diversities of opinions notwithstanding, certain couples were actually being systematically denied the equal protection of legal frameworks concerning civil marriage.
Again, to you, these are moral issues. As far as the government is concerned, it has to do with bodily injury or political issues.
That is precisely my argument: while I view marriage (and other such issues) as a moral issue, it is also a legal (political) issue, and that is the aspect with which the government is properly concerned when it rules that marriage laws (and other such laws) must be Constitutional.
But this is the view against which I took you to be arguing in your initial comment, so I think I'm probably misunderstanding you.
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