The 14th Amendment Due Process and Equal Protection Clauses have nothing to do with marriage, “gay” or otherwise

The Due Process Claim

From my treatise The Kiss of Judice: The Constitution Betrayed: A Coroner’s Inquest:

§16.34 Due process clause—No discrimination in judicial proceedings

Coroner: The 14th Amendment says “[N]or shall any State deprive any person of life, liberty, or property, without due process of law . . . .”

The due process clause requires state courts to give persons, whose lives, liberties, or properties are subject to judicial deprivation, notice and fair opportunity to be heard.

Mr. J. Story in speaking of the substantively-identical 5th Amendment version—“[N]or [shall any person] be deprived of life, liberty, or property, without due process of law—described due process as:

Mr. J. Story: [B]ut an enlargement of the language of Magna Charta: “Neither will we pass upon him, or condemn him, but by the lawful judgement of his peers, or by the law of the land.” Lord Coke says, that . . . “by the law of the land,” [was meant] by due process of law; that is, without due presentment or indictment, and being brought in to answer thereto by due process of the common law. So that this clause, in effect, affirms the right of trial, according to the process and proceedings of the common law.[1]

Coroner: Mr. J. Story overstated due process in the italics above. The federal constitutional right to a trial is set forth in Amendments 6 and 7.

Otherwise Mr. J. Story’s analysis is correct and applies to the virtually identical 14th due process clause.

Mr. Hamilton said that due process had no application other than in judicial proceedings: it was strictly a procedural protection.

Mr. Hamilton: [Due process has] a precise technical import, and only applicable to the process and proceedings of courts of justice; . . . never . . . to an act of the legislature.[2]

Coroner: Due process,  consequently, has no substantive content—it does not apply to legislation, except legislation that purports to govern judicial procedure.[3] The constitutional right of due process can, therefore, imply no constitutional right to an abortion, and no constitutional right to 1st Amendment freedom of speech, press, or religion, to give a few examples of how the Supreme Court has mangled the due process clause.

But perhaps the greatest abuse of the due process clause occurred in today’s supreme court ruling purporting to deny the perogatives of states to define marriage as between man and woman and to exclude same sex “marriages”.

[1] Story, Familiar Exposition @
[2] Berger, The 14th Amendment and the Bill of Rights, p. 9, University of Oklahoma Press, Norman (1989), citing The Papers of Alexander Hamilton, Syrett & Cooke, eds. (1962).
[3] In the case of laws pertaining to judicial procedure, the due process clause forbids the enactment of procedures that deny notice and an opportunity to be heard.

The Equal Protection Claim

The court also relies on Equal Protection to strike state marriage laws. Again from my treatise:

§16.35 Equal protection clause—to prohibit discrimination in law enforcement and administration

14th Amendment: “[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws.”

Coroner: Equal protection, the final component of the 14th, was aimed at equality in the enforcement or administration of law; thus it operates as a restraint on state executive branch personnel, on state law enforcement, and on state courts. Like due process, equal protection has no application to the legislative branches of state government except for legislation dealing with state judicial procedure.

How does the equal protection clause fit in with the other three clauses we have discussed? We have seen that the citizenship clause was designed to give natural born and naturalized persons state and U.S. citizenship; the privileges and immunities clause to put all U.S. citizens, including newly-citizened blacks (and other persons residing) within a state on equal footing with the other citizens of that state in order to prevent legislative discriminations and to prevent 2nd class citizenship; and the due process clause to insure that all persons, citizens or not, were afforded notice and an opportunity to be heard in judicial proceedings against them.

Conventional wisdom is that the equal protection clause is a guarantee against discriminatory legislation as well as discriminatory administration or application of law; and legions of cases have used equal protection to strike down discriminatory legislation.[1] However, that “wisdom” is misguided, for it ignores the word “protection”, makes the privileges and immunities clause redundant, and disregards the backdrop and intention of the 14th Amendment. The word “protection” and the history of enactment show that equal protection was not designed at discriminatory legislation in matters of civil rights (that was the job of the 14th’s 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.[2] 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 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.[3]

Coroner: That conclusion is not only supported by the word “protection” and by the context, but also by the fact that the privileges or immunities clause was, as we have seen, the “legislative equality clause”, the clause by which legislative discrimination against resident blacks and migrating blacks was prohibited. 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.


[1] E.g.: Shapiro v. University for Women v. Hogan, 458 U.S. 718 (1982) @ 58&page=718 (gender segregation in schools); Califano v. Goldfarb, 430 U.S. 199 (1977) @ , (discrimination in social security benefits for women); Phyler v. Doe, 457 U.S. 202 (1982) @  (statute barring children of illegal aliens from public schools).
[2] 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.”
[3] Berger, The 14th Amendment and the Bill of Rights, pp. 122-123.


Published in: on June 26, 2015 at 4:59 pm  Leave a Comment  

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