In 1866, when members of the 39th Congress of the United States submitted the Constitution's 14th Amendment to state legislatures for ratification, they would have been stunned to learn that they had just written a provision mandating that homosexual sex be treated on the same moral plane as heterosexual sex. On Friday, Oct. 21, the Kansas Supreme Court, ruling under the Supreme Court precedent of Lawrence v. Texas (2003), decided that the 39th Congress meant just that. A Kansas law penalizing statutory homosexual rape more severely than statutory heterosexual rape was struck down under the 14th Amendment's "equal protection" clause.
The 14th Amendment states, "No State shall … deny to any person within its jurisdiction the equal protection of the laws." The amendment was specifically designed to protect freed slaves in the aftermath of the Civil War. In particular, the amendment was designed to prevent states from refusing to enforce criminal and civil laws when the victim was black. The 14th Amendment did not abolish segregation in any way, shape or form: Many Northern states, after ratifying the amendment, continued to segregate their public schools.
Over time, the Supreme Court broadened the scope of the "equal protection" clause of the 14th Amendment. The original meaning of the clause was discarded in favor of more expansive interpretations, most notably in Brown v. Board of Education. In ruling state-sponsored segregation unconstitutional under the 14th Amendment, the Supreme Court disconnected the "equal protection" clause from its history and context. In Brown, the outcome (desegregation) was morally unassailable. But by moving above and beyond the Constitution in favor of a higher moral goal, the Supreme Court allotted itself ultimate power: final lawmaking authority. In doing so, the Supreme Court stomped on the most important right for all Americans: their right to vote for duly elected representatives, and the right of those representatives to legislate under the Constitution.
In Brown, of course, the evil destroyed (segregation) may indeed have outweighed the popular right to vote on policy. It is difficult to argue that anyone should have refrained from protesting the sin of state-sponsored segregation, no matter what their assigned constitutional role. By putting its own morality ahead of both the Constitution and the American people, however, the Court set a dangerous precedent. Now the Court, in the name of its own morality and under the rubric of the "equal protection" clause, could overrule anything.
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