The Twisting of Equal ProtectionFebruary 23, 2012
Adopted in 1868 during Reconstruction, the Fourteenth Amendment laid a fundamental part of the framework for racial inclusion throughout the Union. Section 1 focuses on expanding citizenship eligibility and requiring all states to grant due process, as well as apply all laws equally, to all people within their jurisdiction. And it's this latter clause -- known as the Equal Protection clause -- that was written specifically to prevent southern states from applying, upholding, and enforcing laws differently for different people -- a repudiation of state laws denying blacks property ownership, restricting their rights to enter into contracts, and imposing sentencing guidelines for crimes inconsistent with those for whites. Laws, their application, and their enforcement must be a function of circumstances, NOT of individuals.
More than 140 years later, leaders of the modern progressive agenda have mired Equal Protection in a web of strange and intellectually dishonest arguments, seeking, in effect, to apply Equal Protection unequally.
The issue of gay marriage, for example, is often argued as a Fourteenth Amendment concern: How can a state restrict marriage to one man and one woman while denying a man the opportunity to marry another man, or a woman a woman? Does this restriction not deny homosexuals equal standing to marry as they choose vs. heterosexuals? Those making the argument miss the key difference from the original intent in 1868: No one is denied the right to marry in any state, so long as that marriage conforms to the state's legal definition of marriage. Any man is free to marry any woman in any state, and any woman is free to marry any man, and no state is discriminating its applicability of its own marriage statute based on someone's orientation. The fact that a homosexual does not WANT to conform to a state's definition of marriage -- seeking a marital structure not recognized by the state - does not invalidate the state's definition of marriage.
This stands in stark contrast to state laws in the 1860's that targeted individuals instead of circumstances -- e.g. denying any person of one race the right to own property while expressly granted any person of ANOTHER race that same right. In essence, the laws invalidated by Equal Protection grant rights or impose restrictions on individuals and NOT the entire population of people within a state's jurisdiction.
Yet "right" to gay marriages lives on as a fight for modern progressives. Oddly, their spin on Equal Protection flies in the face of one of their "achievements": the progressive tax system. For the sake of discussion, let's give progressives the false premise that a state that denies couples of the same sex marital status is violating Equal Protection. Can I then ask the same question with regards to taxes: Does a state, that assesses different effective tax rates based solely on one's income, violate Equal Protection by applying different tax laws to different people? After all, if my neighbor gets to pay a 10% tax rate, why shouldn't I also have the right to do that? A progressive might simply respond, "Because you make more money." Perhaps I do. But if my state were to deny my male neighbor the right to marry his long-time boyfriend, he might ask a similar question: "Why can other people get married while I cannot?" The comparable answer is similar: "Because you want to marry a man."
These results are the outcomes of individual choices. I can choose to earn less money if I want to pay a lower tax rate; my neighbor can choose to marry a woman if he wants to marry at all. These are equal and consistent outcomes.
As a matter of intellectual honesty, we understand that Equal Protection does not apply to either the gay marriage or the taxation scenario. States ARE free to establish their own rules of taxation, so long as those rules are applied to and enforced equally of all people within their jurisdiction. They're free to establish their own definitions of marriage as well, applied to everyone.
And so we give a point to the progressives in this debate, even as we deny them another. Circumstances are independent of the individuals involved. Equal protection for all people within the jurisdiction of a state mandates that the circumstances dictate the laws without regard to the individuals affected. We simply hope that those using the Equal Protection clause as a justification for their position will take the care to use it with consistency and honesty.
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