Equal Protection Clause Does Not Require States to Permit “Gay Marriage”

The clause says, “[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”

The word “protection” and the history of the clause’s enactment show that equal protection was not aimed at discriminatory legislation in matters of civil rights (that was the job of the privileges and immunities clause), but only at discriminatory enforcement, administration, or application of existing law.

At the time the 14th was adopted, blacks were being regularly brutalized by gangs of thugs and killed by lynch mobs. Their properties were being destroyed. The “abysmal failure of the South to protect blacks” was a national disgrace that needed to be quickly remedied.[1] The remedy the framers devised was the equal protection clause, which by its terms required states to protect blacks by enforcing laws against mayhem, murder, and so on.

Professor Raoul Berger makes the point well:

Prof. Berger: What then is the substantive content of the words “equal protection of the laws”? The almost exclusive focus on “equal” has obscured the significance of the word “protection.” Yet it is “protection” that is the subject of discourse; “equal” is the modifier. Whatever “protection” is furnished must be “equal.” What, it needs to be asked, was to be protected? The abysmal failure of the South to protect the “person and property” of blacks against violence and murder, to safeguard the means whereby they could exist, furnishes the answer. That approach can rescue analysis from treating the word “equal” as if it were a crystal ball. “Protection,” if given, must be impartial.[2]

The problem equal protection addressed was how to guarantee that every person, citizen or otherwise, within a state was entitled to the same law enforcement protection, and the immediate effect was that blacks could legally insist, for example, on the same police protection as whites.

Consequently equal protection has nothing to do with marriage “gay” or otherwise.

 

 

 

[1] Berger, The 14th Amendment and the Bill of Rights, p. 123. Senator Wilson stated, “Thousands and tens of thousands of harmless black men . . . have been wronged and outraged by violence, and hundreds upon hundreds have been murdered.”

[2] Berger, The 14th Amendment and the Bill of Rights, pp. 122-123.

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Published in: on January 28, 2015 at 7:46 am  Leave a Comment  

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