In Monday’s Los Angeles Times, columnist Michael Hiltzik wrote a post, criticizing Judge Leon’s decision in the March for Life case. The original version of the story (courtesy of Archive.org) simply noted that Judge Leon found that the mandate was a “violation of the 5th Amendment’s guarantee of equal protection and therefore ‘unconstitutional.'”

This is an accurate assessment of Leon’s opinion.

At some point on Tuesday, Hiltzik modified the online version without any note. The new version (I couldn’t find a cached version) read:

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?)

Hiltzik took a fair characterization of the opinion and turned it into a cheap shot. As I noted yesterday, although the 5th Amendment does not have an Equal Protection Clause, the Court in Bolling v. Sharpe read it as embracing an equal protection component, or as Hiltzik put it in his initial column a “guarantee.” In any event, I found over 600 federal judges who used the phrase “equal protection clause of the Fifth Amendment.” It isn’t precisely correct, but enough judges use it that I’m not troubled. In contrast, a search for “equal protection component of the Fifth Amendment” (the more accurate phrase) yielded only 841 hits.

Hiltzik and I went back and forth over twitter. At some point yesterday, again without notation, the LA Times modified the article again:

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; it’s applied to the federal government by the Fifth, but via that amendment’s Due Process Clause. Shouldn’t a federal judge know this?)

Hiltzik clarifies his remark, but doubles down on the cheap shot. He had it right in the first instance. He was forced to acknowledge that the 5th Amendment embraces the Equal Protection guarantees, but still had to fault the judge for not knowing this–which he certainly did.

The initial characterization was fair. The second characterization was unfair. After it was pointed out that it wasn’t accurate, the third was less unfair, but still a cheap shot.