L.A. Times Calls Judge Leon’s Ruling “Sloppy” Because Equal Protection Clause in 14th, not 5th Amendment

September 2nd, 2015

Earlier this week I blogged about Judge Leon’s opinion D.D.C. finding that the contraceptive mandate could not be applied to March for Life, a non-religious pro-life group, because it violates Equal Protection. In one of the more uninformed critiques of the opinion, Michael Hiltzik of the Los Angeles Times makes a mistake that shows a dearth of basic constitutional law knowledge:

Because the contraception mandate applies to secular employers but not religious groups, he found that it “violates the equal protection clause of the Fifth Amendment” and is therefore “unconstitutional.” (Leon is typically sloppy here: the equal protection clause is found in the Fourteenth Amendment, not the Fifth. Shouldn’t a federal judge know this?)

If Hiltzik had read the Supreme Court’s 1954 decision in Bolling v. Sharpe–where the Court found the District of Columbia’s (federal) segregated school system was unconstitutional– or at a minimum Judge Leon’s opinion, he would know what all first-year law students learn–the Supreme Court has found an equal protection component inherent in the 5th Amendment’s Due Process Clause. (Whether this is consistent with original meaning is a far different question). This was how Justice Kennedy in Windsor found that DOMA was inconsistent with equal protection–it was a federal law, so he had to look to the 5th Amendment, not the 14th. Before calling a federal judge sloppy, a Pulitzer-Prize winning columnist should get his facts straight.

H/T Robert Dittmer

Update: Hiltzik tweets back that there is indeed no “equal protection clause of the Fifth Amendment.”

He is right. Bolling stated this clearly:

The Fifth Amendment, which is applicable in the District of Columbia, does not contain and equal protection clause, as does the Fourteenth Amendment, which applies only to the states.

But it is a common enough usage that I’m not troubled. I did a WestLaw search of the AllFeds database for “equal protection clause of the Fifth Amendment.” It pulled up 600 judges who used that exact locution. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits. Here is a sampling after the jump.

Update 2: Further, it is often colloquially said that a state police officer’s search violated the 4th Amendment. This isn’t the case. In fact, the state police officer violate the 4th Amendment, incorporated into the 14th Amendment’s due process clause. Consider how Justice Alito framed the issue in United States v. Windsor:

The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.

United States v. Windsor, 133 S. Ct. 2675, 2706, 186 L. Ed. 2d 808 (2013)
It is the “Equal Protection Clause” that limits federal action, even though it is reverse incorporated into the 5th Amendment.
Judge Leon should have been more precise, but his usage is not out of the norm.

 

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