After my discussion on same sex marriage, someone messaged me and asked why the 14th Amendment did not apply. It is a good question, and one which I will answer in my new segment, “Ask Janus.” If you have a question you want to ask, leave a comment, drop me an email, or send me an IM. If the question is relevant enough, I’ll write a response to it.

The fourteenth amendment says a lot of things. For this discussion we want to look at the first and fifth sections which say:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

On the face of it, it would seem that the Fourteenth Amendment does indeed state that gays should be given equal treatment under the law.

Sad as it is, I have to start off by saying that if the United States Supreme Court does not declare that the constitution says something, it does not actually say that. To phrase it another way, if the court does not rule something unconstitutional, it is constitutional, and until the courts decide that laws defining marriage as between a man and a woman violate the fourteenth amendment, they do not.

That is the de facto position we find ourselves in. Until the courts decide that it is, in fact, unconstitutional, all we have are arguments – and there are a number of arguments used that side-step the constitutional issues brought by the fourteenth amendment.

1. If you are not a woman or a minority, the United States Supreme Court historically does not extend fourteenth amendment protection to you. The official term for groups protected by the fourteenth amendment protection is “suspect class.” The courts occasionally recognize the physically and mentally disabled as a suspect class, but it does so with far less vigor than women and minorities. Suspect class status has not been granted to sexual orientation, despite several anti-homosexual laws being brought to the courts attention.
2. Gays are allowed to marry – they just are not allowed to marry each other. The rationale behind this argument is that gays are not being denied the right to get married, they simply choose to not exercise it. By arguing that gay people are still allowed to marry, the opponents of same-sex marriage believe that they are not treated any differently under the law. Never mind the fact that the legal definition of marriage is a union between man and woman.
3. Separate but equal. In states that provide civil unions, the fourteenth amendment is bypassed by the legal doctrine of separate but equal. Despite what you learned in history class, the Supreme Court still holds this to be a valid doctrine. The reason Brown V. Board of Education was overturned was that the court believed the facilities were unable to ever be truly equal. In this case, civil unions are held to be an acceptable alternative.
4. Pursuant to section five, congress has passed legislation defining marriage as between a man and a woman. It has been argued (in a very convoluted and circuitous way) that congress has the right to do this.

I hope that answers the question. If you have a question you would like answered, shoot me a message.