The "equal protection" clause of the Fourteenth Amendment is getting quite a workout these days. In some jurisdictions, "equal protection" gives a homosexual person the same access to his or her "partner's" company's health-insurance plan as a spouse in a traditional marriage. In other jurisdictions, "equal protection" leads to the recognition of homosexual "marriage" on the same basis as traditional marriage. And on and on.
None of this would be happening if the "equal protection" clause hadn't long ago been turned upside down by loose constructionists. What "equal protection" really means is this:
Any law that is otherwise constitutional is a valid law, which must be applied equally to all persons.As long as that law is applied equally to all persons, it is irrelevant if the application of the law happens to lead to unequal outcomes for various identifiable groups of persons. Instead, "equal protection" now means that everyone is entitled to the same outcome -- the law be damned.
Consider, for example, an employer who is foolish enough to screen job applicants by administering tests that might, even by inference, measure intelligence. Why? Because such tests would expose the employer to a charge of racial discrimination, under the Civil Rights Act of 1964, under which it has become illegal for employers to make hiring decisions if the effect of those decisions (not the intent, but the effect) seems discriminatory.
The perverse logic of the current interpretation of the "equal protection" clause may be further illustrated by a (not so far-fetched) hypothetical. Many crimes carry a stiffer penalty if a perpetrator possesses a firearm in the commission of a crime. The current, perverted interpretation of the "equal protection" clause would eliminate the additional penalty for carrying a firearm on the ground that all criminals ought to be treated the same. Taken to the extreme, the current, perverted interpretation of the "equal protection" clause would de-criminalize crime on the ground that criminal statutes do not afford criminals "equal protection" of the law; that is, criminals go to jail while others go free. The logic of the current, perverted interpretation of the "equal protection" clause boils down to this: Legislatures may not attempt to legislate for the preservation and protection of a civil society (e.g., heterosexual marriage is good for society, potentially violent criminals are bad for society) if legislation somehow fails to treat all persons equally, even persons who are not the intended beneficiaries or targets of legislation.
Marriage, as an institution that comes under the jurisdiction of the States, should be governed by the laws of the States. A State court that decrees, without benefit of legislation, that marriage is available to homosexuals has made new law by applying the perverted meaning of the "equal protection" clause. A proper application of the "equal protection" clause by a State court would go something like this:
The legislature of this State, acting in accordance with the constitution of this State, has determined that marriage consists of a legal, binding, union between a man and a woman. Therefore, this court cannot institute homosexual marriage because to do so would dilute the benefits pertaining to marriage under the laws of this State, by requiring the State to transfer scarce resources to the support of homosexual unions, in violation of "due process" and "equal protection" clauses of the Fourteenth Amendment to the Constitution of the United States. All who come under the purview of a constitutional law are entitled to the protection of that law. All who do not may petition the legislature for a more encompassing law.And so, even though marriage is a State-controlled institution, it would be within the purview of the U.S. Supreme Court to overrule a State supreme court's creation of a right to homosexual marriage without legislative authority. Why? Because the issue involved -- "equal protection" -- arises from an application of the U.S. Constitution.
A Century of Progress? (01/30/05)
Libertarianism, Marriage, and the True Meaning of Family Values (04/06/05)
States' Rights and Skunks (10/20/05)
Same-Sex Marriage (10/20/05)
Speaking of States' Rights and Judge McConnell (10/27/05)