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The “Reconstruction amendments” are three key changes to the U.S. Constitution ratified during Reconstruction between 1865 and 1870 that address the way that slavery’s demise reshaped America’s legal system and redefined what it meant to be free and equal following the Civil War.
Of these three amendments—the 13th, 14th and 15th— the 14th Amendment appears less profound in its implications for the way we lead our lives than either of the other two, one abolishing slavery and the other guaranteeing the rights of those formerly enslaved. But the 14th Amendment’s wording has emerged as a linchpin of key civil rights cases that have shaped our world. The myriad ways that jurists have interpreted it means that the 14th Amendment also has become the focus of more litigation than any other part of the constitution.
Wording in the 14th Amendment guaranteed for the first time “due process of law” and “the equal protection of the laws” for citizens. “While the Fifth Amendment says that Congress can’t do certain things, the 14th expressly applies the same restrictions to the states for the first time,” explains David Flugman, a partner at Selendy Gay Eisberg, who has argued constitutional law cases before numerous courts.
It is the 14th Amendment that created the theory of “substantive due process,” a concept that underpins many liberties that Americans take for granted today. Procedural due process is relatively straightforward directive: did a government entity follow the law when it deprived someone of their life, liberty or property? Substantive due process as a topic is one that lawyers—both practitioners and scholars—regularly debate. In a nutshell, it means that even if a new government regulation or law has clearly not run afoul of any procedural issues, its advocates must still demonstrate that any infringement of someone’s rights is justified and necessary.
A “textualist”—someone who relies strictly on the exact words of a statute or of the constitution, would argue “that the right to privacy doesn’t appear anywhere in the constitution,” says Ciara Torres-Spellicy, a professor at Stetson University and a fellow of the Brennan Center for Justice. But in a series of landmark cases, Supreme Court justices chose to extrapolate an array of civil rights rooted in the idea that Americans do possess a right to privacy.
That argument derives from the substantive due process clause: that neither federal nor state governments can restrict fundamental decisions that affect their liberty or property rights without proving that there’s some kind of overwhelming national interest at stake. Just because a personal liberty or other interest isn’t specifically mentioned in the constitution, justices have argued, doesn’t mean that it doesn’t exist and that it isn’t protected.
Civil rights activist Estelle Griswold fully expected to be arrested when detectives showed up in November 1961 to investigate her new Planned Parenthood clinic in New Haven, Connecticut. She had hoped to overturn a state law dating back to 1879 that criminalized the use of contraceptives. The case was also brought against Dr. C. Lee Buxton, chairman of the Yale Medical School Department of Obstetrics and Gynecology, for providing birth control to married women. At the time, providing contraceptives was illegal in the state.
When the case was argued in front of the Supreme Court in early 1965, Griswold’s and Buxton’s lawyers contended that the law deprived both defendants and the clinic’s patients of their rights, based on the 14th Amendment’s due process clause. Meanwhile, the state claimed it did have a compelling interest in denying even married couples access to birth control: it needed to ensure its own “continuity.”
In a 7-2 ruling, the Supreme Court justices declared the law unconstitutional. While their reasons for overturning the Connecticut statute varied, many relied on the 14th amendment. Justice Arthur Goldberg (with Chief Justice Earl Warren and Justice William Brennan concurring) declared that the due process clause of the 14th Amendment protects liberties “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Among these liberties, they said, was the right of married couples to make personal and private decisions about when to use contraception.
Another fundamental right protected by the 14th Amendment, the Supreme Court Justices soon declared, was the right to marry whomever you wanted, regardless of their race.
One of the longest-lasting anti-miscegenation laws still on the books in the 1960s was Virginia’s Racial Integrity Act of 1924. It required every birth or marriage certificate to define its holder as either white or “colored” and criminalized a marriage between someone deemed to be “colored” and someone with “no trace whatsoever of any blood other than Caucasian.”
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In 1958, when Virginia residents Mildred Jeter (of mixed Black and Native American ancestry) and Richard Loving (defined as “white” by the state) wanted to marry, they headed to Washington, D.C. After returning to Virginia, they were woken up in the middle of the night by policemen five weeks later and arrested. The sentence of a year’s imprisonment for both the Lovings was suspended on the condition that they leave Virginia and not return together for a period of 25 years. In response, the Lovings challenged the constitutionality of a state law telling them who they could—and couldn’t—marry.
And they prevailed. Virginia authorities argued they had as much reason to ban interracial marriages as they did to outlaw polygamy and incest, an argument rejected by every Supreme Court justice. Delivering the court’s unanimous decision in June 1967, Chief Justice Earl Warren declared that “the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the state.”
If individuals have a right to make personal and private decisions about whom to marry (or not marry) and to use contraception, do they have the right to terminate a pregnancy?
Jane Doe (who later went public with her identity, Norma McCorvey) discovered she was pregnant with her third child in 1969. The waitress, who had relinquished custody of her two previous daughters, decided to seek an abortion, but doctors refused, citing Texas laws criminalizing the procedure except when the mother’s life is at stake. While Jane Doe couldn’t mount a successful challenge to those laws before the birth of her third daughter, the lawyer who helped her find adoptive parents introduced her to the attorneys who would help her pursue her case all the way to the Supreme Court.
In the court’s 7-2 ruling in late 1973, the 14th Amendment again took center stage. Associate Justice Henry Blackmun penned the decision, declaring that the right to privacy contained in part in the amendments “concept of personal liberty and restrictions on state action” was “broad enough to encompass a woman’s decision to terminate her pregnancy.” The justices ruled that a state law that broadly restricts abortion violates a woman’s right to freedom in deciding whether to continue a pregnancy.
Forty-nine years later, in June of 2022, the Supreme Court reversed its earlier decision and voted 6-3 to overturn Roe. “Guided by the history and tradition that map the essential components of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abortion,” read the decision.
Houston police weren’t looking for evidence that two men were violating the sodomy laws when, in September of 1998, they entered the home of James Lawrence and arrested him and his companion, Tyron Gardiner. Rather, they were responding to a report (by Gardiner’s ex-boyfriend) that a man with a gun was “going crazy” in Lawrence’s apartment. Finding no gun, just two men engaged in sex, the police arrested both of them. Both appealed their sentence (a fine), and when the case made its way to the Supreme Court, a majority opted to overturn the Texas anti-sodomy statute in June 2003 and thus invalidate any similar laws in other states.
The law “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual,” Justice Anthony Kennedy wrote on behalf of the six justices voting to overturn the verdict and render the statute unconstitutional. Lawrence and Garner, he added, were “entitled to respect for their private lives” and to personal autonomy as consenting adults.
If Americans were free to associate with whoever they wanted and lead their private lives without the interference of the government, would this extend to marriage equality?
What became known as the Obergefell case was actually composed of six separate lawsuits originating in Michigan, Ohio, Kentucky and Tennessee. James Obergefell and John Arthur, residents of Ohio, decided to wed in Maryland, which was one of a growing number of states to grant licenses to same-sex partners. Recognizing that Ohio wouldn’t view their marriage as legal, or extend to them any of the benefits usually given spouses under the law, they challenged the state’s restrictive laws based on the 14th Amendment and the question of substantive due process.
Obergefell triumphed. In a 5-4 decision in June 2015, the Supreme Court required states to acknowledge and respect the validity of marriage licenses granted to same-sex couples. History and tradition may inform but don’t restrict the basis on which a court reaches its decision, Justice Kennedy said, writing for the majority. The right to marry is, he said, one of the “personal choices central to individual dignity and autonomy,” adding that “same-sex couples have the same right as opposite-sex couples to enjoy intimate association.” He specified that this right went beyond merely the right to engage in sex without fear of government intervention, and included the right to form “a two-person union unlike any other.”