“[N]o State should deny to any such person any of the rights which it guaranties to all men.” —John A. Bingham, March 31, 1871
I generally withhold criticism towards State Supreme Court rulings towards their own laws and Constitution. However, I will make exception with the recent California Supreme Court ruling striking down the State’s ban on same-sex marriage because the court majority confined its decision to the challenge under the equal protection of the laws under the State Constitution.
While California’s equal protection language has been judicially recognized to mean “substantially the equivalent of the guarantees contained in the Fourteenth Amendment,” I wonder how many justices on the court actually understand what guarantees the words speak of - and perhaps more importantly for the liberty of the people who cherish self-government - its limits?
One needs to focus on what “laws” are being singled out for equal protection, else, any court can assume for itself without consent of the governed to be the final arbitrator of public morality under the ruse of interpreting constitutional provisions far beyond established boundaries between legislative and judicial branches. As it stands now, there is nothing to stop a future court from declaring there is no “compelling state interest for equal protection purposes” in banning such marriages as polygamy, incestuous, or even marriage between people and fury animals.
How can the court now say you cannot discriminate between same sexes singularly, but it is OK to discriminate between multiple members of the same sex (wives in polygamy), or perhaps those who may be closely related (incestuous)?
The author of the equal protection clause, John A. Bingham of Ohio, said a half dozen times before and after the adoption of the Fourteenth Amendment that it “takes from no State any right that ever pertained to it.” He further pointed out the language does not read no State may deny the equal protection “of its laws, but of the laws.” He is of course referring to the laws of due process (law of the land) in the proceedings of justice and not social equality.
Three years after the adoption of the Fourteenth Amendment, Bingham declares what laws deserves equal protection: “[N]o State should deny to any such person any of the rights which it guaranties to all men.” What laws do States guarantee to all men post Fourteenth Amendment? The laws of due process in the administration of justice, of course.
Why would any State Supreme Court wish to interpret such an import from the Fourteenth Amendment in such an extreme way as to abridge a reserve right of their State to regulate public morality? Mr. Bingham said there was no more of a “vital obligation” of all State legislatures than to “protect morality through law.”
States had always before and after the adoption of the Fourteenth Amendment exercised their reserved right in passing laws governing and regulating domestic marriage that included forms, ceremonies and conditions that must be complied with before the contract of marriage became valid by law. Thus, marriage is more than a civil contract, for it can only be entered in a manner recognized by state law, and can only be dissolved in a like manner.
States had also exercised their reserved right to ban certain types of marriages that can be categorized as polygamous, incestuous, or any unnatural marriage which the legislature of a State have declared to be invalid because such marriages were contrary to the policy of its law.
An 1877 Ohio statute provided for the punishment of persons of “pure white blood” who intermarry or have carnal intercourse with any Negro or person having a distinct and visible admixture of African blood. How could Ohio or other States do this if the equal protection of the laws prevented them from making such distinction’s based upon race, or in this case, sex orientation of the parties involved?
The United States Supreme Court found statutes which prohibit intermarriage between different races, or imposes heavier penalties for adultery between different races, did not infringe the Fourteenth Amendment. (Pace v. Alabama, 106 U. S. 583.) Thomas Cooley says the courts upheld such laws because they deprived no citizen of any legal right, privilege or exemption:
Many states prohibit the intermarriage of white persons and negroes; and since the fourteenth amendment this regulation has been contested as the offspring of race prejudice, as establishing an unreasonable discrimination, and as depriving one class of the equal protection of the laws. Strictly, however, the regulation discriminates no more against one race than against another; it merely forbids marriage between the two. Nor can it be said to so narrow the privilege of marriage as practically to impede and prevent it. Race prejudice, no doubt, has had something to do with establishing this law, but it cannot be said to be so entirely without reason in its support as to be purely arbitrary. The general current of judicial decision is, that it deprives a citizen of nothing that he can claim as a legal right, privilege or exemption.
Another reason for upholding such laws is because the equal protection of the laws have a specific import and meaning that has nothing to do with general civil or criminal laws of a State. California’s equal protection of the laws found under Article I, section 7 of its Constitution is, according to John Bingham, the words of the fortieth chapter of the Magna Carta: “We will sell to no man, we will not deny or delay to any man right or Justice.”
The insertion of these words into the Magna Charta was intended to fix England’s custom under King John of bringing gifts or payment to the King in order to obtain justice before his courts, or extorting fines from suitors or causing delay or denial to right of justice. In other words, under the 40th chapter the right to justice was no longer dependent upon the prerogative of anyone but of the law of the land.
Bingham removed all doubt whether the Equal Protection of the Laws dealt solely with the administration of justice in these December 20, 1870 remarks:
What did this great people proclaim by the adoption of that [fourteenth] amendment, with one unbroken voice, from Maine to California and to Oregon? It was this: that neither the Carolinas, nor Ohio, nor New York, nor Pennsylvania, nor any other State in this Union, shall deny to the chiefest offender hitherto against the rights of this people the equal protection of the laws, and especially of the Constitution and of all laws made in pursuance of it; equal protection with the first man in the Republic. In other words, it places Davis and Toombs and Slidell and Benjamin, who were of the architects of that atrocious revolt (civil war), under like protection of the law with Grant and Sherman and Sheridan, wherever they might be in the Republic, thereby proclaiming them citizens of the United States, and as such by the people’s decree, which no man shall question, entitled to the equal protection of the laws, and that no State should deny to any of them the equal protection of the laws. … They are thereby assured in the general rights of citizens of the United States, and enabled in everyplace proudly and truthfully to exclaim, “I, too, though the greatest of offenders against its laws, am a citizen of the Republic.”
Under the definition of “equal protection of the laws” under the Civil Rights bill of 1866, a couple, who is denied a marriage license by law on account of their same-sex, cannot claim denial of the equal protection of the laws because they were never denied the “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other.”
The California Supreme Court suggested in banning same sex-marriage law could run afoul with the full faith and credit and the privileges and immunities clause under the U.S. Constitution. This is simply lame horse manure. The full faith and credit clause deals with court judgments rendered and does not give extra territorial effect to state legislation or court decisions.
No State is under any duty to validate or recognize any marriage it considers unnatural or contrary to its own laws. Further, the privileges or immunities of United States citizens are not a shield against the laws of a State. For example: A State that might provide for anyone to carry concealed weapons will be of little value to someone under the privileges and immunities clause who enters another State with laws against concealed weapons.
Conclusion: California’s ban of same sex marriages is not contrary to the equal protection of the laws under which the language embodies. If the Supreme Court (State or Federal) wish an amendment they can use to strike down either reserved rights or laws of a State they should insist upon lawmakers to amend the Constitution rather than resort to making up ill-founded judicial remedies out of whole cloth.
Related:
1. Historical Meaning Behind ‘Equal Protection of the Laws’
2. Gay Marriage: Iowa Supreme Court Wrong on the Law
this is silly, being in a homosexual relationship isn’t illegal incest and polygamy are because of biological and equality reasons.
“Overall, I hope that whoever (if anyone at all) reads this considers my argument. If you can persuade me that gay people choose to be gay, then I think you can argue that equal protection does not apply to them”
Who ever it was that made the above quote must also believe the same for sexual serial killers like Jeffery Dahmer. You think he CHOSE to grow up to be a sexual predator like that? It was probably genetic eh? How about the NAMBLA nutcases that can only express their “special sexual ori” with pre pubescent children and are fighting tooth and nail to get consent laws lower and lower. They can’t help the way they are either but whether they chose to be that way or not, they certainly choose to BEHAVE that way and act out their “special sexuality” JUST LIKE HOMOSEXUALS CHOOSE TO. If you can use choice for an argument in that they can not help what they are the same way you can biologically for race, then you can make the same argument that pedophiles are not responsible for what THEY ARE either. Doesn’t matter if its a choice or not because it has nothing to do with your equal rights interpretation which suggests happiness is a Government entitlement in applications that can’t qualify for them the same way everyone else has to.
In Reply to Mike:
There have been no studies of people that showed a link between theire supposed gay sexuality and any genetic component. There have been studies done that showed that ‘gay’ is Not genetic, one of which involved male identical twins. The likelyhood of both twins having that sexual preference was less than 50% which is significant in that amounts to a coin toss.
In 1995, “Time” magazine published “search for a gay gene”. It is now about 15 years later, and they haven’t found it yet.
Whether gay is unnatural or not, is a loaded statement. Biologically and throwing a little common-sense logic, If one were gay and acted exclusively on that would not have any offspring. As a result, if there was a genetic trait it would die with its carrier.
My choice matters not, accurate information is the concern. What political & social lack is there? Along with misguided and misinformed PFLAG members they have a larger political reach. They now have an advocate in the Secretary of Education who supported multiple controversial books. One of those books was about PRE-SCHOOL homosexual activity. Is this the person you want to make our schools safe ?
What if the ‘same sex couple’ are brothers ? Are they to be denied the ‘right to marry’ because they are brothers ? How unfair can you get? If brothers, why not brother and sister? In a few other countries, animal marriage is already practiced.
The ‘facts’ are no where as clear or as high as you imagine. Some estimates are that the estimate is 1.5% of the general population self-identify as gay-males. Slightly less than 1% self-identify as gay-females. With the July 2008 U.S. census of 304M, that would be 7.6M gay & lesbian combined. Is it not a coincidence that all the advocacy groups are not just gay but GLBT or similar letters?
Neither you, nor I, can look into the mind or heart of another person. I cannot fathom the reason someone would choose the lifestyle. There is no proven scientific theory that accounts for it. There are some suggestions that social environment plays a key, or that a traumatic incident may be the cause. Current social experiments are increasing the number of children placed with homosexual couples. And the news shows that some of them are sexually abusing their foster or adopted children. Will our society survive in 10 to 15 years when these children are adults?
I cannot persuade you, I hope you understand I wasn’t even trying. What I was striving for was accuracy. You have not been receiving accurate information.
jdm writes: “While your partial inclusion acts to bolster your argument, it is misleading and does not accurately portray Bingham’s point.”
I’m puzzled to what point you may be referring to? What point do you think Bingham was making when he said “No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws” in the absence of a Equal Protection Clause in either state or federal constitions?
Perhaps he was talking about equal right to the laws of due process since this language can be found in all constitutions?
You have neglected to include Bingham’s entire quotation with respect to the fourteenth amendment and States’ rights:
“this amendment takes from no State any right that ever pertained to it. No State ever had the right, under the forms of law or otherwise, to deny to any freeman the equal protection of the laws or to abridge the privileges or immunities of any citizen of the republic, although many of them assumed and exercised the power…”
While your partial inclusion acts to bolster your argument, it is misleading and does not accurately portray Bingham’s point.
abc said: Two questions: “First, why is the fundamental right to liberty limited to “liberty of person” or imprisonment?”
Same reason why it was inserted into the Magna Carta. Would be pretty difficult to enjoy all liberties of law a people grant to themselves if they can be kept behind bars at the prerogative of a single person.
abc said: “Second, what happens when questions of public morality collide with question of court-administered due process (which are the exclusive and proper purview of the 14th amendment)?”
The two can’t collide because each branch have distinct functions and powers. The 14th amendment doesn’t say anything about the judiciary having any new judicial review powers over resident citizens of a state under state courts. It serves the same function as the Magna Carta by declaring no state may deny anyone the law of the land.
There is no law of the land that says every state must recognize same sex marriages. Same sex couples have no more legal privileges than had couples living together outside of marriage had in the past.
Your argument seeks to narrow the equal protection clause to equal protection under those “laws of due process that protects all from arbitrary acts of government against their fundamental right to life, liberty, and property of person” or those “laws that protect everyone from arbitrary imprisonment (liberty of person), arbitrary taking of life (liberty to life), and spoliation of property (arbitrary taking of property).”
Two questions: First, why is the fundamental right to liberty limited to “liberty of person” or imprisonment? Why does that right not apply to every other liberty that is enjoyed by all equally, including marriage? Where is the original text that precludes such an interpretation? Loving v. Virginia appears wrongly decided based upon this unsubstantiated interpretation.
Second, what happens when questions of public morality collide with question of court-administered due process (which are the exclusive and proper purview of the 14th amendment)? Specifically, what would happen if the surviving partner of a gay decedant refuses to pay taxes which he would uniquely pay (unlike a widow) because he is denied the unlimited marital deduction, and a tax court forces him to pay these taxes? According to your logic, he then would be entitled to equal protection under the law but only to the extent that he is before the court for tax evasion. If his partner had been hospitalized for some time prior to death and he had been denied visitation rights granted to married couples, then he would not be entitled to equal protection for that issue. This is what your logic implies, which seems rather arbitrary.
I understand that this is a touchy subject, and I am not gay, but for what it’s worth, if anyone is willing to listen, I’ll explain why I completely disagree with this article’s view that prevention of same-sex marriages does not offend the Equal Protection Clause. I am a law student, so I have actually studied this quite a bit.
The essence of Equal Protection is the identification of a suspect-class. Without this identification, you have no claim to equal protection of the laws… for example, criminals are not a suspect class. If they were, they could claim that laws throwing them in jail for committing crimes violates the Equal Protection Clause because it treats criminals differently from everyone else. We know this is absurd, but I’m just using this to explain why there needs to suspect-class identification.
Homosexuality has traditionally NOT been given suspect class status, and that is where I think the flaw of this author’s article stems from. Basically it boils down to this. I think that you can ONLY argue that gay people can be denied the right to marry if you ALSO believe that gay people choose to be gay.
The thing is, they don’t. The vast majority of gay people are born gay. There is a concept that being gay is somehow unnatural, but now there is a wealth of scientific evidence that shows us that there are gay animals, too. Even ignoring this, look at it from a common sense standpoint. Considering their current lack of political and social rights, why would anyone CHOOSE to be gay? Ask yourself, could YOU choose to be gay? If my life depended on it, I know that I could not.
If being gay, as I believe, is not a choice, then you have no more control over it than being white, black, or asian, and THAT is why homosexuality deserves suspect class status. That is also why Justice Scalia’s argument fails when he says that preventing same-sex marriages doesn’t offend equal protection because they can still marry people of the opposite sex. He is assuming that they CHOOSE to be gay. It would be like saying that a law telling a black person that they can vote, as long as they become white when they walk to the polls.
This is also why I think there is no merit in the argument that allowing same sex marriages paves the way for incest marriages, animal marriages, etc. The fact is, there are tens of millions of gay people in America, and a lot of evidence that they are born with that predisposition. I would challenge anyone to come up with any similar evidence that there are classes of people out there who feel that they are born with the need to commit incest or bestiality. The fact is, that behavior is FAR less common and there is no evidence that it is linked to any natural predisposition. Gays, on the other hand, are more numerous in this country than Jewish people. Yet no one would think to deny Jews the right to get married.
Overall, I hope that whoever (if anyone at all) reads this considers my argument. If you can persuade me that gay people choose to be gay, then I think you can argue that equal protection does not apply to them. Otherwise, I think a law that prohibits their marriage is discrimination against them for the way that they were born, and is unconstitutional.
So I will assume that you think the Supreme Court of the United States overstepped thier bounds in Loving vs. Virginia?
“Under the Fourteenth Amendment, this means not only can a State not deny someone its laws of due process before its tribunals of justice, but also cannot unequally apply those laws to different classes of persons.”
This nicely explains why Bingham spoke of the equal protection of the laws as due process even though his original amendment omitted the words due process. This would also explain why he considered the equal protection of the laws as already existing under the original constitution.
Nice work, Mr. Madison.
“However, through a tyrannical act of fiction called substantive due process, the court has made itself the final arbitrator over issues of public mortality.”
I couldn’t agree more with this. Stalinism thrives under the Supreme Court.
I like this analysis approach for no other reason that it exposes the absurdity misapplying a constitutional provision to achieve some judicial result that properly belongs to the machinery of democracy. I also appreciate this rare candid discussion of the meaning of the equal protection of the laws.