In short, under the law in question, sexual deviants who believe their sex is not that which appears on their birth certificate, nor have taken surgical and legal steps to change the gender specified on their birth certificate, are not permitted under the law to use a public bathroom designated for a sex contrary to what is stated on their birth certificate. Does this violate our federal Constitution? We are told by our United States Attorney General Loretta Lynch that the law violates federal law. But our Constitution is the Supreme Law of the Land, and that includes the 14th Amendment which has been asserted is violated by North Carolina’s H.B.2 law. So, let us look at some irrefutable facts, as opposed to Loretta Lynch’s personal views of justice, fairness or reasonableness which she asserts is violated by North Carolina’s HB 2 law.
The 14th Amendment declares in crystal clear language:
”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
As we can see from the language of the 14th Amendment it:
- Makes ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof” … citizens of the United States and of the State wherein they reside.”
The amendment then goes on to declare:
- “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” This wording forbids every State from abridging a United States citizen’s “privileges or immunities” which a State has adopted under law. Note that the wording does not forbid a State to deny “privileges or immunities” to “persons” who may not be “citizens of the United States”! Nor does the wording declare what “privileges or immunities” a state may or may not adopt.
The amendment then continues with:
- “… nor shall any State deprive any person of life, liberty, or property, without due process of law…”
This wording applies to “any person” as opposed to “citizens of the United States” and It expressly forbids every State to deprive any “person [within its jurisdiction] of life, liberty, or property without due process of” a State’s laws. Due process of law refers to procedure and the administration of justice in accordance with established rules and principles.
This section of the Amendment then concludes with:
- ”…nor deny to any person within its jurisdiction the equal protection of the laws.”
This wording simply commands that whatever a State’s laws are, a person within that State’s jurisdiction may not be denied the equal protection of those laws. Keep in mind the wording does not forbid a state to make distinctions in law, e.g., based upon sex or age, but whatever laws are adopted by a State, the State may not deny to any person within its jurisdiction the equal protection of those specific laws.
Now that we have looked at the text of the 14th Amendment, exactly what was the legislative intent of the Amendment? I ask this question because our aim, in this discussion has been summarized as follows by our very own Supreme Court:
The whole aim of construction, as applied to a provision of the Constitution, is to discover the meaning, to ascertain and give effect to the intent of its framers and the people who adopted it.***_____HOME BLDG. & LOAN ASS’N v. BLAISDELL, 290 U.S. 398 (1934)
So, what was the legislative intent of the 14th Amendment as stated by one of its ardent supporters?
“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.” ___ SEE: Representative Shellabarger, Cong. Globe, 1866, page 1293
The very notion that the 14th Amendment prohibits distinctions in law based upon sex is an invention of Justice Ginsburg made in the Virginia Military Academy (VMI) case.
In delivering the Court’s opinion in the Virginia Military Institute (VMI) case, decided June 26, 1996, which commanded the Institute to accept women by citing the 14th Amendment as forbidding sex discrimination, Ginsburg pointed to previous Supreme Court rulings and a court invented test unknown to our founding fathers or the 39th Congress, and asserted a party seeking to uphold government action making a distinction based upon sex must establish an "exceedingly persuasive justification" In addition, Ginsburg noted, “The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.”
But to this day, neither Justice Ginsburg nor any Supreme Court Justice has ever established by the text of the 14th Amendment, nor its legislative intent as expressed during the debates of the 39th Congress which framed the amendment, that its purpose was to forbid distinctions in law based upon sex.
The argument that the 14th Amendment prohibits state legislation which makes distinctions in law based upon sex is immediately exposed for the fraud that it is when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment, the People of America decide to forbid sex discrimination [the discrimination mentioned by Ginsburg and Loretta Lynch] but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”
If the 14th Amendment prohibited every kind of discrimination as we are led to believe today, including discrimination based upon sex as Ginsburg and Lynch allege, then why was it necessary for the 15th and 19th Amendments to be added to the Constitution after the adoption of the 14th Amendment __ each of which forbids a new, but specific kind of discrimination?
Finally, why would there have been a proposed and so-call equal rights amendment attempted to be added to the Constitution of the United States in the 1980’s to prohibit sex discrimination, which fell short of the required number of ratifying States, if the 14th Amendment already prohibited distinctions in law based upon sex as Ginsburg and Loretta Lynch allege?
Thumbs up to the State of North Carolina and Gov. McCrory for standing up to Loretta Lynch’s attempted blackmailing. Hopefully other states will join in this suit.
“The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges’ views of fairness, reasonableness, or justice.” – Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968