by Mat Wadsworth
“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.”1
The Fourteenth Amendment was added to the United States Constitution in 1868, and finally enshrined into law the idea that “all men are created equal.”
The Amendment was so powerful that it immediately ended all racial discrimination, and it ensured that all states began to treat all persons equally regardless of race, religion, gender, or national origin. Lynchings ended, the KKK was stripped of all influence, and all people were immediately allowed equal access to all public facilities.
The words in the Amendment were so influential that memories of the pervasive racial injustice that preceded the Civil War were relegated to the pages of history. The United States Supreme Court quickly and aggressively wielded the text of the Fourteenth Amendment to strike down discriminatory state laws.
Back in reality, words are just words unless they are supported by societal attitudes and the political will to enforce them.
The Supreme Court did not invalidate “separate but equal” until the ink had been dry on the Fourteenth Amendment for almost a century. The shocking proposition that “separate educational facilities are inherently unequal” was not law until 1954.2 Rosa Parks did not refuse to give up her seat until 1955. Race riots were triggered in Los Angeles just twenty years ago when a jury without a single black member acquitted four white police officers of brutally beating a black man.
Just four years after the Fourteenth Amendment was passed, a woman named Myra Bradwell applied to practice law in the state of Illinois.3 Her application was denied because she was a married woman, and she appealed her case to the United States Supreme Court where she invoked the equal protection clause of the Fourteenth Amendment.4 The Supreme Court relied on English common law and argued that “a proposition that a woman should enter the courts of Westminster Hall in that capacity, or as a barrister, would have created hardly less astonishment than one that she should ascend the bench of bishops, or be elected to a seat in the House of Commons.”5 The Court continued on to approve of the discriminatory treatment based on the fact “that God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as an almost axiomatic truth.”6 The Court sidestepped the Fourteenth Amendment by finding that the right to practice law is governed by state law, and therefore the Federal government cannot protect that right through the U.S. Constitution.7
Myra Bradwell was not entitled to practice law because women traditionally did not practice law. Women were simply not designed by God to practice law. And, in any case, the practice of law is traditionally regulated by the states, so the federal government is powerless to enforce equal treatment.
Do any of these arguments sound familiar?
Society was not prepared to accept a woman as a lawyer, and the justices on the US Supreme Court are a reflection of that society. Words on a piece of paper could not change society’s views and the Court found a way to uphold that. The fact that those words appear in the Constitution makes little difference if societal attitudes are strong enough.
Yesterday, President Obama came out in support of gay marriage. He simultaneously emphasized that his views are personal and will have no impact on his policies because of his belief that marriage is an institution that should be regulated by the states, not the federal government.
No one can deny that President Obama has been a strong supporter of gay rights. He repealed “Don’t Ask Don’t Tell,” and directed the Department of Justice to stop defending the Defense of Marriage Act in federal court because of his belief that it is unconstitutional. Yesterday’s announcement makes him the first sitting president to openly support gay marriage.
His support is important, and it should be welcomed by gay rights advocates. But, it also needs to be kept in perspective. Words are just words, especially when they come with the caveat that they are a personal position and will have no effect on policy.
On the same day that Obama made his announcement, North Carolina voters approved a gay marriage ban by a wide margin and the Colorado legislature killed a bill that would have allowed same sex civil unions. California is still fighting to end “conversion therapy” for teenagers.
The civil rights movement faced similar societal problems in the 1950s. President Eisenhower had to send in the national guard to enforce desegregation in Little Rock, Arkansas in 1957. Eisenhower had to force racial desegregation on the south literally at the point of a gun a century after the Fourteenth Amendment was passed into law. President Obama is not even willing to say that he thinks the federal government has any role in ensuring equal protection for gay marriage.
President Obama has done something commendable. He has acknowledged that all people are entitled to equal protection under the law, and all people have the right to be married, regardless of their sexual orientation. He should be celebrated for that today.
But, it is important to keep his statements in perspective and remember that the fight for marriage equality is far from over. Words are just words, even when spoken by the president. A Constitutional Amendment took a century to begin curing racial and gender injustice in this country. A nice statement on a morning talk show is a start, but it has a minimal impact when not even coupled with any sort of definitive policy shift.