How One of the Most Important Edits in U.S. History Paved the Way for Marriage Equality

tags: gay history, LGBT, gay marriage

Tom Donnelly is counsel at the Constitutional Accountability Center. Before joining CAC, he was a Climenko Fellow and lecturer on law at Harvard Law School.  

... Congress established the Joint Committee on Reconstruction in December 1865. The body was tasked with studying the conditions in the post-Civil War South and recommending a congressional response—one that might counter President Johnson, rally the Republican Party, and provide a new blueprint for Reconstruction. The committee’s most enduring legacy is Section 1 of the 14th Amendment—arguably, the most important provision added to our Constitution after the Bill of Rights.

This critical text is the handiwork of John Bingham—a now-forgotten American who was a key leader during Reconstruction. Described by Justice Hugo Black as “the Madison of the ... 14th Amendment,” Bingham pushed for new protections that would respond to the abuses of the former rebels and set important constitutional baselines for post-Civil War America. Bingham finally got his wish on April 28, 1866, when the Joint Committee on Reconstruction approved his text for Section 1 of its proposed Amendment.

A few days earlier, the committee had agreed on language for the proposed amendment that focused exclusively on the evils of racial discrimination, reading, “No discrimination shall be made by any State, or by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.” However, Bingham convinced his fellow committee members to broaden this language.

Bingham’s key move was to craft a new provision that promised “equal protection of the laws” for all persons, not just African Americans. In one of the most important edits in American history, Bingham added text that was, as he later explained, “a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of the Union,” guaranteeing “equal protection” for “any person, no matter whence he comes, or how poor, how weak, how simple—no matter how friendless.” 

Without Bingham’s revisions to Section 1, it’s entirely possible that the equal protection clause would have outlawed only racial discrimination—a major addition to our Constitution, to be sure, but a long way from the provision that we have today. Instead, Bingham incorporated into our Constitution the broad promise of the Declaration of Independence that “all men are created equal.” Better still, he perfected and universalized it by substituting the word “person” for Jefferson’s “men.” ...

Read entire article at Slate

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