On Friday, Cuccinelli appeared at Boys State, where a high-school student asked him, “How is that not a violation of the equal protection clause of the 14th Amendment?” Cuccinelli responded by suggesting that the amendment was not designed to protect gay people:
“State universities are not free to create any specially protected classes other than those dictated by the General Assembly,” Cuccinelli said. “Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment,” he said.
“There are judges who think these things ‘evolve,’ is the word they like to use,” Cuccinelli said, but the correct approach to making such a change would be a constitutional amendment, he said.
It’s certainly true that the authors of the 14th amendment may not have “contemplated” protecting gay people from discrimination, but the Supreme Court has. Despite Cuccinelli’s rather arrogant attempts to dismiss legal precedent and impose his own vision of the Constitution on America, the Court has found that laws motivated solely by anti-gay animus are unconstitutional — and Cuccinelli is bound by that case whether “the people who wrote and voted for and passed the 14th Amendment” “contemplated” about gays or not.
In 1996’s Romer v. Evans the court ruled that a Colorado law called Amendment 2, which rescinded recently anti-discrimination measures, violated the 14th Amendment’s equal protection clause because animus towards a certain group of people does not constitute “a legitimate governmental purpose.”
“‘[I]f the constitutional conception of `equal protection of the laws’ means anything, it must at the very least mean that a bare . . . desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.’ Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973),” the Court wrote. “Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it.”