Equality In The Constitution: What Kind?

The Fourteenth Amendment to the United States Constitution includes the Equal Protection Clause, which mandates that individuals in similar situations be treated equally by the law. The clause, which took effect in 1868, was intended to stop states from discriminating against Black people, but its broad wording has led to its application in a wide variety of landmark cases concerning racial discrimination, reproductive rights, election recounts, gender discrimination, and racial quotas in education. The Supreme Court has also used the clause to prohibit discrimination on bases other than race, including gender, immigration status, and wedlock status at birth.

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The Fourteenth Amendment

The Equal Protection Clause has been central to many landmark cases, including Brown v. Board of Education, which challenged racial discrimination in schools, and Loving v. Virginia, which struck down laws prohibiting interracial marriage. The clause has also been used to address discrimination based on gender, immigration status, and more.

In addition to equal protection, the Fourteenth Amendment guarantees due process of law, ensuring that no person shall be deprived of life, liberty, or property without it. It also grants Congress the power to enforce the amendment, leading to further civil rights legislation in the 20th century, such as the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

The Civil Rights Act of 1866

The Act declared that all people born in the United States and not subject to any foreign power are citizens, regardless of race, colour, or previous enslavement. It granted all citizens the "full and equal benefit of all laws and proceedings for the security of person and property." This included the right to make and enforce contracts, sue and be sued, provide evidence in court, and acquire, sell, and inherit real and personal property. The Act ensured that all citizens would be subject to the same punishments, penalties, taxes, licenses, and other legal consequences.

The Act was initially vetoed by President Andrew Johnson, who disagreed with the level of federal intervention implied. However, Congress overrode the veto, marking the first time a presidential veto for a major piece of legislation was overridden. The Civil Rights Act of 1866 was closely related to the Thirteenth Amendment, which abolished slavery, and it laid the groundwork for the Fourteenth Amendment's Equal Protection Clause, which took effect in 1868.

The Equal Protection Clause of the Fourteenth Amendment mandates that individuals in similar situations be treated equally by the law. It states that no state shall "deny to any person within its jurisdiction the equal protection of the laws." This clause was intended to prevent states from discriminating against African Americans, but its broad wording has led to its application in a wider range of contexts. The Supreme Court has used the Equal Protection Clause to address discrimination based on factors beyond race, including gender, immigration status, and wedlock status at birth.

Affirmative action

The Fourteenth Amendment to the US Constitution, which came into effect in 1868, includes the Equal Protection Clause. This clause mandates that individuals in similar situations be treated equally by the law.

Supporters of affirmative action argue that it promotes substantive equality for group outcomes and representation for groups that are socio-economically disadvantaged or have faced historical discrimination or oppression. Opponents of affirmative action argue that it is a form of reverse discrimination that tends to benefit the most privileged within minority groups at the expense of the least fortunate within majority groups.

The term "affirmative action" was first used in the United States in Executive Order 10925, signed by President John F. Kennedy on March 6, 1961. This executive order mandated that government contractors "take affirmative action to ensure that applicants are employed and employees are treated [fairly] during employment, without regard to their race, creed, colour, or national origin".

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Equal Protection Clause

The Equal Protection Clause, part of the Fourteenth Amendment to the United States Constitution, mandates that individuals in similar situations be treated equally by the law. The clause, which came into effect in 1868, was primarily intended to validate the equality provisions of the Civil Rights Act of 1866, which guaranteed that all citizens would have the right to equal protection under the law.

The Equal Protection Clause states that no state shall "deny to any person within its jurisdiction the equal protection of the laws". This clause has been central to many landmark cases, including Brown v. Board of Education, which helped to dismantle racial segregation in schools, and Obergefell v. Hodges, which legalised same-sex marriage. The clause has also been invoked in cases concerning reproductive rights (Roe v. Wade), election recounts (Bush v. Gore), gender discrimination (Reed v. Reed), and racial quotas in education (University of California v. Bakke).

The Fourteenth Amendment, which contains the Equal Protection Clause, was a significant shift in American constitutionalism, imposing far more restrictions on states than had been in place before the Civil War. The Amendment was drafted and debated by Radical Republicans in Congress, including John Bingham, who was the principal author and drafter of the Equal Protection Clause. The Clause was a response to the 1857 Dred Scott v. Sandford decision, in which the Supreme Court ruled that black men, whether free or enslaved, had no legal rights under the Constitution.

The Equal Protection Clause has been interpreted to prohibit discrimination not only on the basis of race but also on the basis of gender, immigration status, and wedlock status at birth. The Supreme Court has also suggested that discrimination against gays and lesbians may violate the Equal Protection Clause, though the level of scrutiny to be applied in such cases has not yet been determined.

The Equal Protection Clause has been crucial in protecting civil rights and ensuring that state governments govern impartially, without drawing distinctions between individuals based solely on differences that are irrelevant to a legitimate governmental objective.

Same-sex marriage

The question of same-sex marriage has been a contentious issue in the United States, with a long history of legal battles and shifting public opinion. In 2015, the Supreme Court ruled in Obergefell v. Hodges that the Fourteenth Amendment guarantees the right of same-sex couples to marry, striking down state-level bans on same-sex marriage. This decision affirmed that marriage is a fundamental right protected by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.

The road to this landmark ruling was paved with numerous legal challenges and victories for same-sex marriage advocates. In 2003, a Massachusetts high court decision legalizing same-sex marriage brought the issue to the national stage. Subsequently, in Kerrigan v. Connecticut Department of Health (2008), the Connecticut Supreme Court ruled that a state law banning same-sex marriage violated the state constitution's guarantee of equal protection. This ruling was significant as it affirmed the principle of equal protection, which would become central to the Obergefell decision.

The Obergefell v. Hodges case itself consolidated several lawsuits brought by same-sex couples who were denied marriage licenses or recognition of their out-of-state marriages. The Supreme Court ruled in a 5-4 decision that the right to marry is inherent in the liberty of the person and protected by the Constitution. This ruling effectively nullified all state-level bans on same-sex marriage and ensured that same-sex couples would have the same rights as heterosexual couples under the Fourteenth Amendment.

While the Obergefell decision was a significant victory for LGBTQ+ rights, the battle for marriage equality continues. In 2022, Supreme Court Justice Clarence Thomas suggested that the court should reconsider its opinions protecting same-sex relationships and marriage. Additionally, Republican lawmakers have introduced ballot measures seeking to undermine same-sex couples' right to marry. These efforts underscore the ongoing struggle to protect and maintain marriage equality for all.

Public opinion polls, such as the Grinnell College National Poll in 2022, indicate strong support for same-sex marriage as a guaranteed right. This shift in public sentiment, along with legal victories, has played a crucial role in advancing marriage equality. Despite the remaining challenges, the Obergefell decision stands as a pivotal moment in the fight for equal rights for same-sex couples in the United States.

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