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

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.”

Bolling, which you cite: “The Fifth Amendment…does not contain an equal protection clause.” Bolling cites the 14th https://t.co/b3d9G5KwXC

— Michael Hiltzik (@hiltzikm) September 2, 2015

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.

	1. U.S. v. Williams United States Court of Appeals, Second Circuit. October 02, 2009 347 Fed.Appx. 710 2009 WL 3161349 CRIMINAL JUSTICE – Sentencing. Sentencing Guidelines’ 100-to-1 ratio of powder cocaine to crack cocaine did not violate the Equal Protection Clause. …of powder cocaine to crack cocaine did not violate the Equal Protection Clause of the Fifth Amendment; (2) imposing the mandatory minimum sentence did not violate… …of powder cocaine to crack cocaine did not violate the Equal Protection Clause of the Fifth Amendment, as it was rationally related to the legitimate governmental interest…
	2. Enterprise, Inc. v. Bolger United States District Court, E.D. Tennessee, Winchester Division. March 21, 1984 582 F.Supp. 228 https://www.westlaw.com/Search/Results.html?query=fi%3A&transitionType=Search&contextData=%28sc.Default%29&VR=3.0&RS=cblt1.0 Newspaper publisher brought action challenging constitutionality of certain postal regulations and mail classification standards, and sought damages and injunctive relief. The District Court, Hull, J., held that postal regulations which accord second-class mailing privileges only to newspapers whose subscribers pay to receive them, thus… …to newspaper distributed free of charge to its subscribers, violated equal protection clause of the Fifth Amendment and First Amendment right to free speech. U.S.C.A. Const.Amends. 1… …or otherwise.” [2] Plaintiff contends that these regulations violate the Equal Protection Clause of the Fifth Amendment to the United States Constitution by making an arbitrary and…
	3. California Ass’n of the Physically Handicapped, Inc. v. F.C.C. United States Court of Appeals, Ninth Circuit. June 22, 1990 905 F.2d 1540 (Table, Text in WESTLAW), Unpublished Disposition 1990 WL 85433 F.C.C. DENIED. …rule violates the Rehabilitation Act, the Communications Act, and the equal protection clause of the fifth amendment by not implementing an equal employment opportunity program for the… …alleges that the Rehabilitation Act, the Communications Act, and the equal protection clause of the fifth amendment compel the FCC to require licensees to implement equal employment…
	4. U.S. v. Klein United States District Court, N.D. Illinois, Eastern Division. September 21, 2001 Not Reported in F.Supp.2d 2001 WL 1117338 The Government filed suit against David Klein to recover the amount due plus interest on defaulted student loans. In his answer, Klein admitted to defaulting on the loans, but he set forth several defenses to the Government’s suit, namely, statute of limitations, the Ex Post Facto Clause of Article I of the United States Constitution, the Due… …of the United States Constitution , the Due Process Clause and Equal Protection Clause of the Fifth Amendment to the United States Constitution, laches, and promissory estoppel. Presently… …retroactive application of the Higher Education Technical Amendments involves the Equal Protection Clause of the Fifth Amendment to the Constitution. The Equal Protection Clause of the Fifth Amendment provides that the United States shall afford all people equal…
	5. Mascarenas v. O’Connor United States Court of Appeals, Ninth Circuit. May 15, 1989 875 F.2d 318 (Table, Text in WESTLAW), Unpublished Disposition 1989 WL 52702 S.D.Cal. AFFIRMED. …§§1981 1982 1985(3) , and the due process and equal protection clauses of the fifth amendment. He named eight individual employees of the Navy as defendants… …1981 1982 and 1985(3) , and the due process and equal protection clauses of the fifth amendment. In all of these claims, he sought relief from the…
	6. Copeland v. Shinseki United States Court of Appeals for Veterans Claims. November 14, 2012 26 Vet.App. 86 2012 WL 5939166 VETERANS – Disability Benefits. Effective date of statute authorizing veteran’s surviving spouse to be substituted for his or her deceased spouse in a pending claim for benefits did not violate equal protection component of the Fifth Amendment. …on the grounds that it, on its face, violates the Equal Protection Clause of the Fifth Amendment, I would not raise this issue at all. Because she… …that 38 U.S.C. §3532(d) does not violate the Equal Protection Clause of the Fifth Amendment); Fischer v. West, 11 Vet.App. 121, 123–24 (1998) (finding…
	7. U.S. v. Rivers United States Court of Appeals, Fourth Circuit. January 20, 2011 408 Fed.Appx. 661 2011 WL 181308 CRIMINAL JUSTICE – Sentencing. Sentencing disparity between crack cocaine and powder cocaine offenses did not violate the equal protection clause. …powder cocaine offenses in sentencing guidelines did not violate the equal protection clause of the Fifth Amendment Affirmed West Headnotes 92 Constitutional Law 92XXVI Equal Protection 92XXVI… …powder cocaine offenses in sentencing guidelines did not violate the equal protection clause of the Fifth Amendment. U.S.C.A. Const.Amend. 5 Appeal from the United States District Court…
	8. Raugust v. Shinseki United States Court of Appeals for Veterans Claims. June 11, 2010 23 Vet.App. 475 2010 WL 2331049 VETERANS – Health Care. Minimum service eligibility period for VA medical care benefits does not violate equal protection. …for basic VA medical care benefits does not violate the Equal Protection Clause of the Fifth Amendment. Affirmed. West Headnotes [1] 34 Armed Services 34III Veterans’ Benefits… …Veterans Affairs (VA) medical care benefits does not violate the Equal Protection Clause of the Fifth Amendment, as purpose of reducing attrition provided rational basis for minimum…
	9. Catholic Charities CYO v. Chertoff United States District Court, N.D. California. December 22, 2008 622 F.Supp.2d 865 2008 WL 5385250 IMMIGRATION – Visas. Victims of Trafficking and Violence Protection Act did not provide private cause of action regarding issuance of “U” visas. …Against Women Act; the APA; and the due process and equal protection clauses of the Fifth Amendment to the United States Constitution, FAC ¶¶57–58; (2… …1103 ; the VAWA; the APA; and the due process and equal protection clauses of the Fifth Amendment to the United States Constitution, FAC ¶¶60–61; (3…
	10. Muehlen v. U. S. United States Court of Claims February 06, 1976 209 Ct.Cl. 690 (Table, Text in WESTLAW), Unpublished Disposition 529 F.2d 533 Court of Claims jurisdiction; failure of Government to provide garnishment remedy against federal employees.-Plaintiff, the former wife of a civilian federal employee, was granted a decree of divorce and was awarded monthly support payments and monthly payments as a property award. The petition alleges that the former husband has refused to pay the… …Even if there were violations of the Due Process and Equal Protection clauses of the Fifth Amendment, this court would not have jurisdiction of plaintiff’s claim for…
	11. Greenspan v. Administrative Office of the United States Courts United States District Court, N.D. California. December 04, 2014 Not Reported in F.Supp.3d 2014 WL 6847460 On December 1, 2014, the court entered an Order Dismissing Corporate Plaintiffs for Failure to Obtain Legal Representation; Granting all Motions to Dismiss; Denying Motion for Leave to File Second Amended Complaint and Granting Leave to Amend (“Order”). Through inadvertence, the court failed to address the American Bar… …to become an ECF user. Such conduct allegedly violates the equal protection clause of the Fifth Amendment. 6 (Ct. Dkt. 34 ¶2). The Second Claim, asserted… …charging $0.10 per page. Such conduct allegedly violates the “Equal Protection Clause of the Fifth Amendment.” 7 The Fifth Claim, asserted against the AO Defendants, is…
	12. U.S. v. Prayear United States Court of Appeals, Fourth Circuit. September 12, 1996 96 F.3d 1440 (Table, Text in WESTLAW), Unpublished Disposition 1996 WL 516145 N.D.W.Va. AFFIRMED. …statutory sentencing ratio for cocaine and crack offenses violates the Equal Protection Clause of the Fifth Amendment because of its disparate impact on black defendants. This claim…
	13. U.S. v. Chlumsky United States Court of Appeals, Tenth Circuit. July 05, 1991 937 F.2d 617 (Table, Text in WESTLAW), Unpublished Disposition 1991 WL 125155 D.Wyo. AFFIRMED. …in this manner, he claims, violates the due process and equal protection clauses of the Fifth Amendment. We reject both of appellant’s arguments in light of the…
	14. U.S. v. Belcher United States Court of Appeals, Fourth Circuit. May 23, 2011 431 Fed.Appx. 243 2011 WL 1977920 CRIMINAL JUSTICE – Sentencing. 216-Month prison term was reasonable for defendant convicted of conspiracy to possess with intent to distribute. …5 . 15) k. Peremptory challenges. Trial court did not violate the Equal Protection Clause of the Fifth Amendment by permitting the government to strike the only Asian-American… …1] Belcher next contends that the district court violated the Equal Protection Clause of the Fifth Amendment by permitting the Government to strike the only Asian American…
	15. Brown v. Herron United States District Court, D. Maryland, Southern Division. July 28, 2009 Not Reported in F.Supp.2d 2009 WL 2366131 CIVIL RIGHTS – Equal Protection. A county did not violate a car owner’s equal protection rights when a 911 operator asked if he made his car payments. …of its property; (3) Count III—that Herron violated the equal protection clause of the Fifth Amendment by allowing employees to delay dispatching police officers because of… …great detail. Because Herron is not a Federal Employee, the equal protection clause of the Fifth Amendment does not apply to him. In so far as this…
	16. Hart v. Whalen United States District Court, M.D. Pennsylvania. December 22, 2009 Not Reported in F.Supp.2d 2009 WL 5173487 Presently before us is the Report and Recommendation (the “R & R”) of Magistrate Judge Thomas M. Blewitt, filed July 29, 2009 (Doc. 16), as well as Plaintiff’s Objections to the R & R (Docs.23, 29). For the reasons that follow, we will adopt the Magistrate Judge’s R & R. We have subject matter jurisdiction over this case pursuant to 28 U.S.C. §… …Constitution, racial discrimination by prison officials in violation of the Equal Protection Clause of the Fifth Amendment , failure of prison official [s] to correct other officials’ Constitutional… …Whalen conspired to falsify Plaintiff’s CCS in violation of the Equal Protection Clause of the Fifth Amendment; 6. Defendant Sniezek failed to conduct an investigation into Plaintiff’s…
	17. Roudnahal v. Ridge United States District Court, N.D. Ohio, Eastern Division. December 03, 2003 310 F.Supp.2d 884 2003 WL 23342810 IMMIGRATION – Deportation or Removal. Court lacked jurisdiction to suspend removal of illegal aliens who voluntarily reported for registration. …aliens. The plaintiffs additionally claim that Special Registration violates the Equal Protection Clause of the Fifth Amendment because its requirements apply to only select ethnic/national groups… …the plaintiffs’ claim that Special Registration is unconstitutional under the Equal Protection Clause of the Fifth Amendment because the requirements only extend to specific ethnic/national groups…
	18. Finau v. I.N.S. United States Court of Appeals, Ninth Circuit. October 31, 2001 270 F.3d 859 2001 WL 1335096 IMMIGRATION – Deportation. Statute governing grants of discretionary relief from removal is constitutional. …Finau”) contends that 8 U.S.C. §1182(h) violates the Equal Protection Clause of the Fifth Amendment because it provides discretionary relief to otherwise-barred aliens seeking… …Equal Protection Finau contends that Section 1182(h) violates the Equal Protection Clause of the Fifth Amendment by making the discretionary relief available to aliens seeking admission…
	19. Torres-Landin v. Ashcroft United States Court of Appeals, Ninth Circuit. March 12, 2002 58 Fed.Appx. 242 2002 WL 32060494 Otoniel Torres-Landin (“Torres-Landin”) seeks relief claiming that: (1) the Nicaraguan and Central American Relief Act of 1997 (“NACARA”) violates the Equal Protection Clause of the Fifth Amendment because it impermissibly favors aliens from Nicaragua and Cuba; and (2) NACARA is overbroad because it was intended to benefit aliens who have taken… …and Central American Relief Act of 1997 (“NACARA”) violates the Equal Protection Clause of the Fifth Amendment because it impermissibly favors aliens from Nicaragua and Cuba; and…
	20. McFarland v. Ellis United States District Court, E.D. California. June 06, 2007 Not Reported in F.Supp.2d 2007 WL 1670347 Plaintiff John McFarland (“plaintiff”) is a federal prisoner proceeding pro se in this civil action pursuant to 42 U.S.C. § 2000cc-1 (the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”)), and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), which provides… …the Free Exercise Clause of the First Amendment, and the Equal Protection Clause of the Fifth Amendment, arising from plaintiff’s allegations concerning the November 2005 ceremonial meal…