Civil and Human Rights

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

Next Tuesday, April 28, the Supreme Court will hear oral argument in Obergefell v. Hodges, a blockbuster case addressing the issue of marriage equality. If the Supreme Court ultimately strikes down state laws prohibiting same-sex couples from marrying—as many commentators expect and as the Constitution commands—this date will surely go down as a milestone in LGBTQ rights history. But April 28 is already a critical date for the LGBTQ community—a forgotten anniversary, starring one of the most important Americans you’ve probably never heard of.

The constitutional case for marriage equality turns, in large measure, on the meaning of the 14th Amendment—including, in particular, its equal protection clause, which reads, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” This sweeping, universal language means what it says: It protects all persons from discrimination—whether black or white, woman or man, gay or heterosexual. Simply put, this includes gay men and lesbians challenging state laws that prohibit them from marrying the person of their choice.

The equal protection clause was added to the 14th Amendment—then in draft form—on April 28, 1866, 149 years to the day before the Obergefell argument. To understand the full story of this critical provision, it’s important to begin with some historical context.

Let’s rewind to April 1865. The Civil War has ended, Lincoln is dead, and Andrew Johnson has ascended to the presidency. Our nation is wrestling with some of the most difficult questions to arise since its founding. Should we pardon or punish the former rebels? Should we restore political power to the former Confederate states, and on what terms? And, of course, what duty do we owe the newly freed slaves?

Following Lincoln’s assassination, many Republicans remained optimistic about Reconstruction. In their new president, they saw a border-state Unionist eager to punish the plantation class and, in turn, remake the conquered South. They couldn’t have been more wrong.

President Johnson did agree with many Republicans on the need for the former rebels to pledge their loyalty, abolish slavery, and renounce secession. However, that was just about all that Johnson required of them. He quickly pardoned thousands of high-ranking Confederate officials and large plantation owners, restoring their property rights and their political power. More troubling still, he deferred to the South on how to rebuild its postwar society, leaving the former rebels free to abuse African Americans and white Unionists and do everything possible to restore the antebellum status quo. Northerners may have won the war, but congressional Republicans—the party of Lincoln and union—feared that they might lose the peace.

Enter the Joint Committee on Reconstruction and one of its key leaders, the hero of our story, Rep. John Bingham.

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.”

In recent weeks, our nation has commemorated two other important anniversaries—the end of the Civil War and President Lincoln’s assassination. To mark these occasions, President Barack Obama issued a proclamation, commentators penned countless op-eds, and various historical sites hosted events throughout the country. While these activities are wholly justified, it’s important not to forget about our nation’s post-Civil War story.

In our collective reverence for Lincoln, we often give short shrift to the generation of leaders who succeeded him and who radically improved our nation’s founding charter after his death. These forgotten Americans—leaders like John Bingham, Thaddeus Stevens, and Charles Sumner, among others—shared Lincoln’s goal of securing a “new birth of freedom” for all Americans and pushed for the ratification of the 13th, 14th, and 15th Amendments. It’s no wonder that scholars often refer to this period as our nation’s “second founding.”

As this second founding turns 150, and as the Supreme Court continues to hear cases that draw on its constitutional legacy, it’s important for all of us—including the justices—to remember these forgotten founders and to reflect on their constitutional handiwork. This is nowhere truer than in Obergefell, where the Constitution’s text requires marriage equality.

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