The Supreme Court's decision in Obergefell v. Hodges rules that all people have equal right to marry, and that this right is protected by the Fourteenth Amendment of the U.S. Constitution. The Fourteenth Amendment guarantees that the law shall be applied equally to all people, and was adopted following the Civil War.
During the Reconstruction period after the Civil War, and for over a century afterward, segregationist and discriminatory laws in the South were used to limit the rights of former slaves in the former Confederacy. However, since the right to equal protection and application of the law has been enshrined in the Constitution, all laws of this kind are now invalid and illegal.
When the Constitution was originally adopted, the rights of slaveholders were given much more respect than those of slaves. Compromises were made that now represent the darkest violations of liberty: regarding slaves as 3/5ths a person and enshrining the slave industry into our foundational document. Slaveholding states resisted an equal protection clause in the new Constitution for fear that it would invalidate their diabolical industry.
There was good reason for this fear, as in fact less than ten years prior to the U.S. Constitution's signing, the state of Massachusetts had adopted its own Constitution. A brilliant defense of individual liberty and freedom, it contained a powerful clause:
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
The power of this clause is not its lofty words or the noble virtues it purports to protect. Its power instead came to light when the Massachusetts slave, Quock Walker, sued his owner Nathanial Jennison for his freedom in 1781. The Massachusetts Constitution was barely a year old, yet Walker argued that since the Commonwealth granted him his freedom and equal rights, he could not have been born a slave.
Chief Justice William Cushing could have decided that the centuries of history of the slave trade should be given highest regard in the case. He could have ruled that the property rights of the slaveholder Jennison were of paramount importance. He could have ruled on racial lines, or chosen not to take the case at all.
Instead, Cushing chose to follow the law: he gave highest regard to the individual rights protected by the Massachusetts Constitution, the highest law in the land. His judgment is an examplar of Massachusetts' liberty:
...our Constitution of Government, by which the people of this Commonwealth have solemnly bound themselves, sets out with declaring that all men are born free and equal -- and that every subject is entitled to liberty, and to have it guarded by the laws, as well as life and property -- and in short is totally repugnant to the idea of being born slaves.
Walker won his case and was set free. By the 1790 census, there were no slaves living in Massachusetts. No new law had been passed, no Emancipation Proclamation issued. Instead, the power of equal protection and the Massachusetts Constitution invalidated the old laws, the old slaveholding traditions that had been used to justify perpetual bondage. This new document had begun its centuries-long quest to expand liberty and prevent government discrimination.
Equal protection under the law is essential to liberty. When the United States adopted the Fourteenth Amendment, it elevated the standards of freedom in this country to a new level - to the Massachusetts level. It means that almost any government intrusion which limits the rights of one group of people over those of others will be fundamentally illegal.
It is no surprise that the first state in the nation to invalidate marriage inequality laws was Massachusetts. When Chief Judge Margaret Marshall ruled in Goodridge v. Department of Public Health that Massachusetts could not ban gay marriage, she cited the equal protection clause of the Massachusetts Constitution. Just over ten years later, Supreme Court Justice Anthony Kennedy's stirring decision in Obergefell v. Hodges shows that the protection of the Fourteenth Amendment of the U.S. Constitution is just as powerful.
Unequal treatment under the law has been illegal in Massachusetts since 1780. The power of this protection is unlimited, and the Fourteenth Amendment extended this protection to everyone in America. This is the power that freed Quock Walker, ended "separate but equal" segregationist policies, and that gave gays and lesbians the freedom to marry without government interference.
The Massachusetts Constitution is the oldest constitution in continual use anywhere in the world. It was the model for the U.S. Constitution and its power is evident even today, especially as we celebrate the end of discriminatory marriage laws in our country. From Quock Walker to James Obergefell and John Arthur, we need equal protection laws so that even if we are in a group out of favor with the government, we are still equal under the law. This is the power of the Massachusetts Constitution, and I am grateful to live in a state that values freedom so highly.
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