Dispatches from the Creation Wars

The wingnut attorney general of Virginia, Ken Cuccinelli, told a gathering of high school students in his state that the 14th amendment’s equal protection clause does not protect gays and lesbians because the people who wrote it didn’t like dirty sodomites:

“State universities are not free to create any specially protected classes other than those dictated by the General Assembly,” Cuccinelli said. “Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment,” he said.

His premise is correct; his conclusion is completely backwards. It’s certainly true that the men who wrote the 14th amendment could never have imagined that the equal protection clause could someday be used to protect gays and lesbians against unequal treatment by the government. Absolutely correct.

But the relevant question is, “So what?” It simply does not logically follow that therefore the language of that amendment should not apply to gays and lesbians. The founding fathers could never have imagined that the constitutional provisions allowing for the government to raise and army and a navy would someday also be used to raise an air force; that does not mean the air force is unconstitutional.

Constitutional law requires — doesn’t just allow, but requires — the application of broad principles in situations that the authors of those broad principles could never have thought possible — and even in ways they would have rejected.

The irony is that Cuccinelli is from Virginia, the defendants in Loving v Virginia, the case that struck down laws against interracial marriage. And his predecessor, in defending that law, made the same argument Cuccinelli is making. Those who wrote the 14th amendment not only did not believe that it would allow interracial marriage, they specifically told voters that it would not overturn miscegenation laws.

But in 1967, the Supreme Court ruled unanimously that such laws violate the equal protection clause of the 14th amendment. And Cuccinelli thinks they were wrong. He thinks the state of Virginia should still be allowed to prohibit interracial marriage.