The battle for Marriage Equality is almost won. Later this year, The Supreme Court will decide a case that will settle the marriage equality issue for all 50 states. The question they will answer is whether The 14th Amendment Equal Protection Clause requires marriage equality, as surely it does. For those of you who are not Constitutional nerds, The 14th Amendment provides, among other things, that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (emphasis mine).
The equal protection clause was one of the Reconstruction Amendments. Passed on July 9, 1868, it was meant to lay the legal foundation for full equality for African-Americans, including former slaves who, at the time of its passage, were just three years removed from the institution of slavery. It’s worth noting that prior to the passage of The 13th Amendment, even free blacks were at risk of being enslaved, as Steve McQueen’s luminescent film 12 Years A Slave so painfully illustrated. The 14th Amendment was meant to ensure that those newly freed slaves would be granted full equality under the law. It would take a century for the descendants of former slaves to gain full equality under the law (again, emphasis mine).
While The 14th Amendment was passed in the context of slavery and racial justice, it’s language, like most constitutional language, is broad. This is not an accident. The Founding Fathers, too many of whom were slaveholders, ensconced, in The Declaration of Independence and in The Constitution, language that spoke of aspirations that they themselves did not attain. The Declaration of Independence, for example, holds “these truths self-evident that all men are created equal.” All men. These are the words they chose though they themselves owed their wealth, or a portion of it, to slavery, though they themselves had households and plantations that were run on slave labor, on the blood and sweet and tears of people who were not compensated for their labor and who, furthermore, suffered untold indignities to their bodies and their spirits, including the indignity of brutal and premature death.
So too does The 14th Amendment use inclusive language. It provides for equal protection of the laws for all persons within the jurisdiction of any of the United States. And so when The Supreme Court extends marriage equality to all couples, regardless of sex, a move that this New Yorker article predicts will happen this June, it will be acting in a manner that is consistent with the framers original intent and with the intent of those who drafted and passed into law The 14th Amendment equal protection clause that will make it legally possible.