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.
