There are few areas of the law as deeply polarizing and emotionally heated as the application of the Constitution’s guarantee of the equal protection of the laws to all persons.  What is lost – all too often – in this heated and polarized discussion is the text and history of the Constitution’s Equal Protection Clause itself, along with the full sweep of our constitutional history: the principle of equality first stated in the Declaration of Independence, perfected in the Equal Protection Clause of the Fourteenth Amendment, and further illuminated in the Nineteenth Amendment and other Amendments.

That’s what makes a new study by Constitutional Accountability Center entitled Perfecting the Declaration: The Text and History of the Equal Protection Clause of the Fourteenth Amendment required reading.   Perfecting the Declaration, the fourth in CAC’s Text and Narrative Series, tells the story of how the American people redeemed the Constitution from the sin of slavery and rewrote the Constitution to guarantee equality to all persons, bringing the Constitution back in line with the principle of equality laid out in the Declaration.  In the Equal Protection Clause, “We the People” perfected the Declaration by writing into the Constitution’s text that all “person[s]” are equal, not just that “all men are created equal.”  The story of this constitutional transformation is essential to the Supreme Court’s many landmark rulings honoring the Constitution’s promise of equality for all persons, including Brown v. Board of Education, Reed v. Reed, whose 40th anniversary is being celebrated this week at a star-studded panel in Washington, D.C., and Romer v. Evans.  As important, this story is critical to on-going efforts to persuade courts and, ultimately, if necessary, the Supreme Court, to take the next step and strike down state laws that deny gay men and lesbians the right to marry the person of their choice.

On the right, the idea that the Constitution protects the equality of all persons is under attack.  Justice Antonin Scalia – the right’s patron saint of originalism – has argued that women, as well as gay men and lesbians, are outside the scope of the Equal Protection Clause, claiming that they were not meant to be protected from discrimination.  In his typical caustic fashion, Justice Scalia has pilloried the Court’s rulings applying the text to strike down discrimination based on gender and sexual orientation as “modern inventions” that have no basis in the Constitution’s text and history.  Justice Scalia is wrong.  As the text confirms, the protection of the Equal Protection Clause is universal, excluding no one.

Proposed in 1866 and ratified in 1868, the Equal Protection Clause prohibits a state from “denying to any person within its jurisdiction the equal protection of the laws.”  As Perfecting showcases, the debates over passage and ratification of this universal guarantee of equality confirm what the text makes clear: that equality under the law and equality of rights apply broadly to any and all persons within the United States.  The framers of the Amendment were concerned that states were flagrantly violating the equal rights of a number of different groups of persons.  Newly freed slaves in the South, their white Unionist allies, and immigrants in the West all faced persistent discrimination and lack of legal protection.   To stop these abuses and prevent future ones, the framers wrote the Equal Protection Clause in broad, universal language designed to prohibit invidious discrimination and secure equal rights to all persons.  The text of the Clause thus protects all persons, whether African American or white, man or woman, gay, lesbian, or heterosexual, native-born or immigrant.

The framers of the Fourteenth Amendment are both heroes and villains in the story of our constitutional progression ever closer to the ideal of equality first stated in the Declaration of Independence.  While the framers heroically fought for the broadest textual protection of equality in America’s constitutional history, these men (and they were all men), left untouched a number of odious forms of discrimination that today are universally recognized as blatant forms of inequality.  In 1866, the framers tolerated racial discrimination in voting, did not challenge miscegenation and segregation laws, and effectively wrote into the text of Section 2 of the Amendment an approval of laws that denied women the right to vote.  While the framers would launch a concerted attack on segregation in the 1870s, throughout Reconstruction they were not prepared to live up to the text’s universal guarantee of equality when it came to women’s equality.

Happily, the constitutional struggle for equality did not end in 1868.  In later Amendments, including the Fifteenth Amendment and the Nineteenth Amendment, “We the People” strengthened our charter’s command of equality, while rejecting the notion that women are second-class citizens and that the right to vote is less than a fundamental right.  Most important, the Nineteenth Amendment repealed the portions of Section 2 of the Fourteenth Amendment that had allowed discrimination against women in voting rights.  In ratifying the Nineteenth Amendment, “We the People” determined that women must be treated as full and equal citizens with the same right to vote and participate in the public sphere as men, guaranteeing women what Justice Ruth Bader Ginsburg has called “full citizenship stature.”  With the ratification of the Nineteenth Amendment, the broad text of the Equal Protection Clause stands alone, free from the stain created by Section 2.  In this way, the full sweep of our constitutional history points to a broad reading of the text’s command of equality for all persons.

A plain reading of our Constitution’s text and history not only answers Justice Scalia’s cramped reading of the Equal Protection Clause, it is also central to the constitutional arguments for marriage equality made, for example, by Ted Olson and David Boies in the Perry litigation, which is currently awaiting a ruling by the California Supreme Court on the standing of the only remaining defendants, the Proposition 8 ballot proponents.  Should the Ninth Circuit reach the merits of Perry’s challenge, it should strike down Proposition 8.   State laws that deny gay men and lesbians the right to marry the person of their choosing run afoul of the Fourteenth Amendment’s central command of equality under the law and equality of rights, reflected in both the text and its history.  By depriving gay men and lesbians of one of our most cherished fundamental rights, these state laws treat them as second-class, inferior persons, unworthy of having their loving relationships recognized.  The text of the Fourteenth Amendment secures the same rights and the same protection of the law to all persons, including fundamental rights such as the right to marry.

Cross-posted on Balkinization