Today marks the 146th anniversary of the passing of the 14th Amendment to the US Constitution. This is the amendment that clarified the citizenship and protection of the civil liberties of freed people: no state can deny or abridge the privileges or immunities of citizens of the United States, deprive anyone of life, liberty, or property without due process of law, or deny to anyone within their jurisdiction the equal protection of the laws. As many of you know, Reconstruction is one of the eras in US History I find the most fascinating and this amendment was a product of that unequalled period in attempting true nonracial democracy.
This amendment will the be crucial one within the next year or two when it comes to marriage equality cases going before the Supreme Court. Personally, I want to see the DOMA case come to the SCOTUS first—it can be struck down on the narrower basis that in 1996 Congress overstepped by needlessly meddling into state marriage law. I could see Justice Thomas getting behind that (from a states’ rights perspective alone) as well as Kennedy and Roberts. However, the broader Prop 8 challenge would evoke the 14th Amendment’s equal protection argument and I believe that would be a closer ruling since it could potentially nullify state same-sex marriage bans across the nation. I believe this ruling could very well come down to a 5/4 split hinging on Justice Kennedy’s opinion alone. Perhaps I’m too leery, but I’d ideally prefer to have DOMA-free, almost-full-gay-marriage nation for a couple of years (and perhaps a new Obama-appointed justice or two on the bench) before risking a civil rights set-back of this magnitude.