Help me understand the Due Process and Equal Protection clauses of the 14th Amendment.
Justice Anthony Kennedy wrote for the majority in Obergefell v. Hodges,
“The right to marry is a fundamental right inherent in the liberty of the person,
and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment
couples of the same sex may not be deprived of that right and that liberty.”
Thirty states have no protection against discrimination in housing accommodations and employment for the LGBTQ community. Why doesn’t the 14th Amendment offer such protections?
In due course, this may be remedied. We live in an imperfect society, with a significant population that is utterly hell-bent on denying equal rights to certain other segments of our society.
It’s a fight that has taken centuries, and it’s far from over. We won a great victory yesterday; may there be many more.
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Correct, but States are. If a State writes a law saying that E&L cannot discriminate against group X, people in group Y may ask “Why don’t I get protection from the anti-discrimination law you just passed?”
You may ask that, and the state may grant it, but they have no constitutional obligation to do so. Regulation of commercial affairs is typically left to statutory or administrative law, which is better suited for the task.
They do if they’re failing to provide equal protection of the law. They choose to protect one group and choose to not protect a different group, it is not at all clear that there is no constitutional obligation to equalize.
There may not be an obligation, but that has to do more with the detail than the concept.
You seem to be saying that the State can enact laws that give a specific subset of the population privileges and protections, while ignoring other subsets of the population, without fear of violating the constitution. That the State has “no constitutional obligation” to ensure that protections given to one group are given to other (similar) groups as well.
Yes, that’s correct. I’m not advocating it, but that is the case. Only protected classes are protected and only in certain ways. Even this isn’t fully accurate - there is a lot of nuance around the equal protection clause but there are many instances where not everyone receives the same type of protection.
Yes, but that doesn’t have anything to do with “landlords and employers are not states.”
It has to do with how protected classes are defined. 30 states do not consider LGBTQ a protected class, and 20 do (or something like that).
If SCOTUS decides that sexual orientation is a protected class, the 14th can kick in. They’ve avoided doing so, so far, but it may change its tune in the future.
Even though sexual orientation isn’t defined nationally as a protected class right now, people can, and do, ask the courts if the 14th applies to topics like discrimination protection.
As stated, the Constitutional provisions apply directly only downwards-meaning between a government and a private party. They do not apply directly sideways, meaning between two private parties.
Of course there are several ways they can apply sideways in effect. If a government is giving aid to certain industries, then they can demand (or might be forced to demand) that said industries offer protections.
Another way is licensing rules, an employer or developer may well be able to avoid treating people equally, however, the terms of their licences may demand that they do so, and possibly the state may be compelled to so demand.
It is possible that SCOTUS will make LGBT a protected (and I think they should), but that doesn’t guarantee they’ll have protection under various equal housing acts. It would probably require an amendment to Title VIII, just as it had to be amended in 1988 to include women and the disabled before they had protection, the 14th notwithstanding.
eta: for that matter, they can just amend Title VIII and it doesn’t matter if SCOTUS makes them a protected class or not. Easiest solution.