THE 14TH AMENDMENT TO THE U.S. CONSTITUTION

The 14th amendment to the U.S. Constitution has been a powerhouse in defense of human rights. Dating back to mid-to-late 1800s, the key phrase that made all of the difference was what we now know as the “equal protection clause”. But what was the intent of those authors and are we faithfully interpreting that today? Some might jump to a conclusion and say, “We couldn’t possibly know,” so hopefully we will at least agree that the documented governmental debate around the inclusion of the amendment will sufficiently cast light on the intent such that we can judge if the modern application stays true to it’s purpose.

What we know: The first version was not ratified.

The 14th amendment was one of what we now call the “reconstruction amendments” that were added after the civil war and forward into the practical implementation of removing racial discriminations from U.S. society. When people discuss “institutional racism,” amendments like the 14th were established to fight such a thing. Look at phrases like the following…

nor shall any State deprive any person of life, liberty, or property, without due process of law

What does the context and meaning of the above three elements hold?

• Property: This is a reference to the right of individuals freed from slavery, or any individual, to own property. States were being forbidden to establish special laws that created extenuating circumstances and kept citizens from freely owning property. At around the same time and for the previous 100+ years, voting laws including various taxation and land ownership clauses, though many states were in the middle of changing all of that. Before the 14th amendment was ratified, however, virtually no state required land ownership for voting, but it was still viewed as a key aspect of participation in society.
• Liberty: This is a reference the default means and position of being free from physical restraint or the ability to live freely in use of all of their human faculties. The heart of the contextual usage at the time was economic freedom. You can live where you want, free to earn a wage and make a life. Historically, this terms has been used to defend against employment discriminations as well as challenged in it’s scope, to defend employees from unsafe working conditions due to implied freedom to select contractual employment from a company that knows it is putting employees at risk. The remedy, however, has always been state-specific contract limitations requiring compliance with state-evaluated working conditions. Said another way, everyone is free to enter into a contract to work, but states are allowed to curtail the safety terms of what an employer can offer in terms of a contract.
• Life: This might seem like flowery language, but it was actually targeting something far more specific. The most specific interpretation and implementation of this term meant that if you were human, you were afforded a right to life itself. You shouldn’t just be murdered. But it was also a classifying term. Later in the 14th amendment, there was a remedy made from a previous U.S. Congressional misstep of deciding black American’s were worth only 3/4ths of a vote, hence the equivalent to 3/4ths of a life. This was one of the elements working to fix that. Free Americans have an inherent right to life.

Now that we have discussed these crucial contextual elements, let’s examine the final phrase in the opening paragraph to the 14th Amendment…

nor deny any person within its jurisdiction the equal protection of the laws.

The “equal protection” clause has been used in a number of modern ways. In the context of the previous clause, it is meant as a declaration of defense if the previous rights were ever to be infringed. It doesn’t make anything into an infringement, but rather states clearly that they should get their day in court to challenge what they believe to be an infringement of their rights.

So what needs equal protection?

Everyone needs equal protection. The key is the missing phrase “under the law”. Said another way, if you were a black man in the south and a piece of property went up for auction, and you were not allowed to bid your available funds on the property, you had equal protection of the law to any right, including property ownership.

In modern history, is marriage a constitutional (state or federal) right?

Anything your neighbor is allowed to do, you are allowed to pursue. That is the assumption of rights but in reality it is a lot more nuanced than that. Now, if I burn leaves (let’s assume, legally, and it required a permit) on my lawn, then you as my neighbor should be able to pursue getting the permit just as I have, and burn leaves on your lawn. Is that the same as not getting a permit, or you burning your leaves on my lawn? I should think not. If I married a woman, is it your right to claim you should be able to marry my wife too? Interesting glitch right? It feels like a loophole if you just allow such a thing, which is why all 50 U.S. states implemented laws making the act of polygamy illegal. They saw how someone could take such a view of rights and marriage and decided, individually, they were not cool with that. Even if my fictional wife consented, she and the neighbor could not legally pull it off. Utah, somewhat late to the party, agrees and it is illegal there too (if you didn’t already know). And this is a moral law, rest assured. In the 200+ sovereign nations across our planet, 58 still allow polygamy.

So clearly, marriage is a defended right, but like most things, definitions matter. This is why many states explicitly wrote polygamy laws. It seems odd that one might need to qualify what exactly marriage means, but faced with a group of people who want to change a commonly shared and understood definition, you are left with one of two choices: either you collectively decide that the definition is open-ended, or you begin to specifically and more precisely define the thing.

Like in the above example, states were often allowed to restrict abuses of a right (like the liberty contract concept above) but in some ways that seems to be changing. Take the example of same-sex marriage. Whether for issues of love or convenience, people have a desire to see the concept of marriage expand to include a same-sex understanding. Many states in the U.S. (more did that did not) passed laws to, like polygamy, get more specific about the commonly shared understanding of the definition of marriage. The above is precisely why that tact was taken. It wasn’t a posturing thing. It was a common legal thing for states to do in order to correct or direct around potential loopholes or misunderstandings. But for whatever reason, in June of 2015, the Supreme Court of the United States overruled the ability of states to define marriage. This had the effect of broadening the definition of marriage to now include same-sex contracts making the 14th amendment’s “equal protection” clause immediately relevant nationwide. Said another way, if my neighbor married his same-gendered roommate, but the state didn’t respect the legality of that form of marriage, he could now claim that his marriage was not being afforded the same rights and protections as other traditional marriages.

What was the precedent for overruling state-specific definitions?

The precedent referenced was the notion that, while states could hold a state-specific definition as a ground for not performing same-sex marriages, if a U.S. citizen was married in a U.S. State that allowed same-sex marriage, all U.S. states had to provide equal protection that legal contract. It essentially, moved the issue from being a person-to-person protection of equality, to saying that all states must equally protect legal marriage contracts rendering in any other state in the union.

Some considered that a premiere example of a legal loophole, nearly by definition. It required a loophole reading of the 14th amendment along with a relatively unprecedented suppression of state’s rights. Any same-sex marriage bans at a state level were fundamentally defanged by the judgement.

I think present U.S. Supreme Court Chief Justice John Roberts stated his understanding of what was at play best…

“If you are among the many Americans - of whatever sexual orientation - who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

How is this a loophole exactly?

When sufficient ambiguity exists, it has been the default position of the Constitution and it’s amendments to leave the details to the legislature and not the courts. Let me demonstrate in quoting the last line of the 14th Amendment:

The supreme court shall have the power to enforce this article by creating appropriate legislation.

Just kidding. I changed where it says “Supreme Court”. It should actually read “Congress”…

Congress shall have the power to enforce this article by appropriate legislation.

Fooled you, again. That is the last line of the 13th Amendment. Here is the 14th Amendment …

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

As you can see, the writers here understood that this article is effectively found within the actual legislation that enforces it. The amendment simply gives the Congress direction. Nearly all of the time, when faced with such ambiguity, the Supreme Court turns the case away and does not hear it. The encouragement is typically to default to state legislatures and any federal Congressional laws that might take precedence. In this case, the judgement was a loophole because it moved away from all of that to, in the most broad sense, legislate a matter best left to the states and the U.S. Congress. If expanding support for same-sex marriage into the generally held understanding of marriage across the country in a manner that should overrule state legislatures, it would have required Congress to make those implementations in law, to be evaluated and supported by the Supreme Court.

Historically, when that modern instance of debating the interpretation of the 14th amendment happened, Congress would not have passed such laws. The “remedy” here was a debatably unconstitutional rendering of precedential ruling by an activist Supreme Court.

If this example is an unconstitutional loophole, what does that mean for the future?

In the short run, it means that state courts could defy the supreme court rulinsg, because, to date, there are no laws they would be violating (remember - judgements by the Supreme Court do not create new laws).

In the long run (and very near future), a case could rise to the Supreme Court, challenging that precedential case, and the outcome could be a reversal, returning the impetus to first and foremost, the states, but also to Congress to pass a federal law if same-sex marriage will formally be embraced by the Constitutional process.

Will this happen? Well, having nothing whatsoever to do with how an individual feels about same-sex marriage, I think it is likely to happen for Constitutional reasons. The groundwork is already in place. Justice Kennedy, who was the senior justice and swing vote for the case and who wrote the majority opinion, has now retired. He was replaced by Justice Brett Kavanaugh (which explains the enormous high-profile fight against his nomination) who has historically been a Constitutional lawyer and judge. Justice Kavanaugh played a significant role on the D.C. circuit protecting the Constitutional separation of powers, which likely means he will judge in favor of reversing the OBERGEFELL vs. HODGES Supreme Court case around the 14th Amendment, making it a matter for state and the U.S. Congress to resolve.