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Bar News - August 19, 2015

Opinion: Next Generation of Leaders Should Focus on Equality, Not Just Liberty


Editor’s note: The following is adapted from a chapel talk delivered July 6 to participants in the advanced studies program at St. Paul’s School, where the author taught a course in law and government this summer.

During the regular school year, I teach constitutional law at the UNH School of Law. This past year, as the same-sex marriage cases made their way to the US Supreme Court, a major topic of discussion was whether the Court would ground a ruling in favor of same-sex couples solely in the Constitution’s promise of liberty – that is, a freedom from interference with the fundamental right to marry – or whether the Court might also employ an equal protection rationale that would make the case about more than just marriage. I was hoping for the latter, but was not holding my breath. For far too often, we default to liberty and flinch at the implications of a serious societal commitment to equality.

My students are often surprised to learn that the promise of equal protection of the laws was not formally part of the Constitution until 1868, when the Fourteenth Amendment was ratified. It’s understandable that students are surprised at the recent vintage of equality as a constitutional commitment. After all, the most famous statement in the Declaration of Independence reads: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

The Founders thus certainly understood equality to be a natural right; in fact, they listed it before liberty in their famous missive to the King. It certainly was not okay with them that they were unequal under the law vis-à-vis their fellow Englishmen. But the institution of slavery precluded incorporating an equality guarantee into the text of the original Constitution, notwithstanding the Declaration. The Constitution’s famous preamble only promises to preserve the blessings of liberty. Any notion of equal protection under the laws is conspicuously absent from the original Constitution and the Bill of Rights.

Even after the Fourteenth Amendment was ratified following the conclusion of the Civil War, the new equal protection guarantee was largely a dead letter. From 1868 to 1877, the Reconstruction Congress enacted a number of civil rights statutes that banned racial discrimination in places of public accommodation. It understood section five of the Fourteenth Amendment, which provides for congressional “enforcement” the equal protection clause, to authorize enactment of these laws. But in 1883, the Supreme Court adopted a crabbed reading of section five to hold the most important of these statutes unconstitutional. (The Civil Rights Cases). Then, in 1896, the Court held that the provision and maintenance of separate but “equal” state facilities was consistent with the Fourteenth Amendment (Plessy v. Ferguson). Thus, the Court constitutionalized American apartheid and placed it beyond the power of Congress to remedy.

During this same era, the Court also brushed aside the argument that the equal protection clause required the enfranchisement of women (Minor v. Happersett). Little wonder then that, in 1927, Justice Oliver Wendell Holmes Jr. disparaged the equal protection clause as “the usual last resort of constitutional arguments” in an opinion upholding a Virginia statute authorizing sterilization of the feeble-minded.

I recount this sorry history, in the context of our annual celebration of a document proclaiming it “self evident” that “all men are created equal,” because I think that contemporary American society continues to unduly discount the promise of equality under law. Many Americans, and no doubt many of you, are celebrating the Supreme Court’s same-sex marriage decision as a blow for equality. And it is true that the opinion, which is in fact principally grounded in a liberty rationale, does give the equal protection clause a nod. But it does so in a way that is at best confusing, for it suggests that government might yet lawfully authorize business owners and others, in the name of religious liberty, to discriminate against those with a same-sex sexual orientation in the provision of employment, housing, and other essential services.

Sure enough, since the ruling, we have seen high-ranking public officials in many states inform subordinates that they may decline to issue marriage licenses to same-sex couples on grounds of religious objection. Surely, this is far too capacious a conception of religious liberty. Taken to its logical conclusion, it calls into question the government’s entitlement to outlaw private discrimination in any sphere.

You are coming of age at a time beset by public policy challenges that require responses in which we heed not only our commitment to liberty, but also our commitment to equal “protection” of the laws. “Protect” is an action verb. It embodies a promise to act affirmatively to bring about conditions in which all may engage in their natural right to pursue happiness.

But this does not describe contemporary American society. Wealth and income inequality have reached historic levels, access to educational and employment opportunities is woefully unequal, the urban poor frequently live in war zones, women are paid less than men for doing the same work, and large numbers of young men from historically disadvantaged racial and ethnic groups languish within our harsh prisons. Climate change – with its disproportionately severe effects upon the world’s poor – is upon us.

My prayer today is that, as the leaders of the next generation to which these problems are bequeathed, you will act in ways that not only honor our constitutional commitment to liberty, but also our commitment to equal protection of the laws. Doing so requires far more than merely warding off the government.

John Greabe

John Greabe is a Professor of Law at the University of New Hampshire School of Law, where he teaches (or has taught) constitutional law, First Amendment law, civil procedure, conflict of laws, and judicial opinion drafting.

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