NEW: Proposition 8 cases based on a phantom constitutional clause

5th Amendment has no ‘equal protection component’

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It is possible that in June 2013, the U.S. Supreme Court may fatally damage the institution of marriage by using a nonexistent clause in the Bill of Rights. 

In 1954, the Supreme Court effectively amended the U.S. Constitution to add an equal protection clause to the Fifth Amendment. In 1977, the Supreme Court called this phantom clause the Fifth Amendment’s “Equal Protection Component.” 

There are 108 words in the Fifth Amendment, and no matter how hard you try, you cannot find the words, “equal,” “protection” or “component” in the amendment. The component simply doesn’t exist. Nevertheless, for more than 50 years American courts have been deciding cases based upon this nonexistent clause.

This phantom clause was most recently used in a homosexual “marriage” case from New York, Windsor v. United States. In this case, Edith Windsor sued in federal court to have Section 3 of the Defense of Marriage Act (DOMA) declared unconstitutional. Section 3 limited marriage to one man and one woman for federal purposes. Ms. Windsor, a resident of New York, had had a homosexual “marriage” in Canada. If the federal government would recognize her same-sex “marriage,” she would be entitled to a federal tax refund of $363,053.00 as a result of the death of her lesbian partner.

She won her case in the U.S. District Court and in the U.S. Court of Appeals. In each instance, the court based its ruling upon the nonexistent clause in the Fifth Amendment. This June, if the U.S. Supreme Court agrees with the lower courts, it is likely they will use the same nonexistent clause.

Along with the Windsor case, the U.S. Supreme Court will hear another case from the State of California, called Hollingsworth v. Perry. This case involved Proposition 8, which was passed by the voters of California. Proposition 8 added language to the California Constitution to limit marriage to one man and one woman. Unfortunately, a homosexual judge named Vaughn R. Walker in the U.S. District Court in San Francisco ruled that Proposition 8 violated the Equal Protection Clause and the Due Process Clause in the Fourteenth Amendment. This time, however, the equal protection clause does exist. The Fourteenth Amendment does have an equal protection clause, as well as a due process clause. On appeal however, the U.S. Court of Appeals for the 9th Circuit upheld Judge Walker’s decision, but only on the basis of the equal protection clause.

The problem for the case from New York is that the Equal Protection Clause in the Fourteenth Amendment cannot be used in their case. Since DOMA is a federal law and since the Equal Protection Clause in the Fourteenth Amendment applies only to the state governments, the New York courts were forced to use the phantom clause in the Fifth Amendment.

I agree that the Constitution should be amended to add an equal protection clause that applies to the federal government. However, Article V to the Constitution requires that the states must approve of any proposed amendment. The Supreme Court does not have the authority to amend the Constitution by itself.

Thus, marriage as we know it could be destroyed by the Fifth Amendment’s so-called Equal Protection Component. It is one thing for American courts to corrupt the institution of marriage by abusing a clause in the Fourteenth Amendment; it is another matter to do it with a clause that doesn’t even exist. Let us pray that the Supreme Court will uphold traditional marriage in America.

David WNew, a member of the Maryland and D.C. bars, is author of “The Constitution for Beginners” (Pocket Publications, 2003).

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