The idea of equality under the law dates back to the foundations of democracy and the ancient Greek word “isonomia.” “Equal justice under law” remains so essential today that it is engraved in the cornice of the Supreme Court building.
In 1868, Congress and the states codified this important ideal into the Equal Protection Clause of the Fourteenth Amendment: “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” As the text and history of the Fourteenth Amendment plainly show, the Equal Protection Clause guarantees to all persons — regardless of race, sex, or any other group characteristics — equality under the law, including the legal right to marry the person of one’s choosing.
In 2008, however, California voters passed Proposition 8, a ballot initiative reversing a California Supreme Court ruling that had authorized same-sex marriage and restricting the right to marry to opposite-sex couples only. Both the federal district court and the Ninth Circuit Court of Appeals ruled that Prop. 8 was unconstitutional, for reasons ranging from the violation of a fundamental right to the impropriety of removing rights/benefits once granted.
With the case, Hollingsworth v. Perry, now before the U.S. Supreme Court, the Cato Institute has joined the Constitutional Accountability Center (CAC) on an amicus brief that focuses on supporting marriage equality under the Equal Protection Clause. Our brief explains that the purpose of the Fourteenth Amendment was not exclusively to address the disparaged rights of former slaves but, as the historical record shows, was intended to be universal in its protection of “any person” within U.S. jurisdiction.
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