Citizens United, the conservative group that successfully sued to enable wealthy corporations to buy elections, also has it in for same-sex couples. Yet an amicus brief they recently filed in the Supreme Court backing the unconstitutional Defense of Marriage Act would not simply deny marriage equality to gay people, it calls upon the Supreme Court to toss out a landmark decision ending public school segregation in the District of Columbia and declare that the federal government is free to discriminate against minorities and women:
Until May, 17, 1954, the day upon which this Court struck down “racially segregated public schools” in the States under the equal protection guarantee of the Fourteenth Amendment, it was generally understood that the due process guarantee of the Fifth Amendment did not have an equal protection component. As this Court observed in Adarand, “[t]hrough the 1940’s, this Court has routinely taken the view . . . that, ‘unlike the Fourteenth Amendment, the Fifth contains no equal protection clause and it provides no guaranty against discriminatory legislation by Congress. However, in Bolling v. Sharpe, this Court shoehorned equal protection into the due process text by sheer will, declaring “it would unthinkable that the same Constitution would impose a lesser duty on the Federal Government.”
To the contrary, it was and is eminently “thinkable” that the Reconstruction Congress, led by abolitionist Republicans, would propose an amendment to the Constitution that would increase the powers of the federal government at the expense of the states.
To translate this a bit, the Fourteenth Amendment provides that “[n]o State shall . . . deny to any person within its jurisdiction the equal protection of the laws,” and thus this guarantee against discrimination explicitly applies only to state laws and not to the federal government. On the same day that the Supreme Court handed down Brown v. Board of Education, however, the Court also held in Bolling that a shield against public school segregation is one of the liberties protected by the Fifth Amendment, which does apply to the federal government. Thus, the District of Columbia, which is a federal entity, could not have segregated public schools.
Citizens United is now claiming that Bolling was wrong, and that the Constitution does absolutely nothing to prevent the United States from engaging in discrimination of any kind. If the justices buy their argument — as they were all too willing to do in the case that bears Citizens United’s name — it would mean that Congress is free to set up its own Jim Crow laws.