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The Constitutional Case for Marriage Equality

February 28, 2013 in Economics

By Doug Kendall, Ilya Shapiro

Doug Kendall and Ilya Shapiro

The Cato Institute and Constitutional Accountability Center don’t always agree politically, but we both pride ourselves in following where the Constitution leads. Several years ago, that led us to argue together for the enforcement of the right to keep and bear arms against state laws. It leads us this week to file joint briefs in the landmark Supreme Court cases on marriage equality. For us, these cases aren’t a matter of politics or ideology; they are a fight for the true meaning of one of America’s most sacred constitutional rights.

The constitutional case for marriage equality begins with the sweeping and universal text of the Fourteenth Amendment’s Equal Protection Clause, which guarantees “equal protection of the laws” to “any person.” Drafted in 1866 and ratified in 1868, the Clause wrote into the Constitution the ideal of equality first laid out in the Declaration of Independence. The text protects all persons from arbitrary and invidious class-based discrimination, whether black or white, man or woman, gay or straight, native-born or immigrant. It gives to all persons, as individuals, the guarantee of the equal protection of the laws.

Constitutional history shows that the breadth of the Equal Protection Clause was no accident. It is clear from the drafting history of the Clause that the framers were determined to strike out against more than simply discrimination on the basis of race. The framers wrote the constitutional guarantee broadly to ensure, for example, that white supporters of the Union in the South as well as Asian immigrants in the West were protected from arbitrary and invidious discrimination. As a result, the framers repeatedly rejected proposals that would have prohibited racial discrimination, and nothing else.

These cases aren’t a matter of politics or ideology; they are a fight for the true meaning of one of America’s most sacred constitutional rights.”

The Fourteenth Amendment’s framers also recognized the right to marry the person of one’s choosing as a crucial component of freedom and liberty — a right that had long been denied under the institution of slavery. Slaves did not have the right to marry, and slaves in loving relationships outside the protection of the law were time and again separated when one slave was sold to a distant part of the South. As Senator Jacob Howard — the leading sponsor of the Amendment in the Senate — explained, …read more
Source: OP-EDS

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