After 149 years, Kansas lawmakers still grappling with 14th Amendment
Topeka When Kansas lawmakers gathered back at the Statehouse on Jan. 11, few probably realized it was an important anniversary in state legislative history.
On that same day in 1867, not yet two full years after the end of the Civil War, the Kansas Senate voted 23-0 to pass a resolution ratifying the 14th Amendment to the U.S. Constitution. The House had given its approval, 76-7, the day before.
Kansas was only the ninth state to ratify the amendment. It would take another year and a half, until July 28, 1868, before it was fully ratified, and then only after Congress had made ratification a condition for the former Confederate states to re-enter the union.
And Kansas was still such a new state at the time, the Legislature didn't even meet in what is now the Statehouse. Instead, according to the Kansas State Historical Society, the House and Senate met in various locations around Topeka, in churches and office buildings, and in a building known as Topeka's Constitution Hall, where the first free-state constitution was drafted.
The 14th Amendment was one of three post-war amendments that were supposed to put the issues of slavery and racial discrimination to rest. It’s the one that says, among other things, that states may not deprive their citizens of life, liberty or property without due process of law, nor deny to any of them equal protection under the laws.
It was a milestone in American legal history because until then, the Constitution only prohibited Congress from denying due process or equal protection. It said nothing about what states could or couldn’t do.
But today, 149 years later, issues that are embedded in the 14th Amendment continue to stir controversy in statehouses around the country, on issues ranging from abortion to gay rights, and from even voting rights to school finance.
Richard Levy, who teaches constitutional law at the Kansas University law school, said it’s not surprising that state governments are continually embroiled in 14th Amendment controversies.
“The first thing to understand is, the 14th Amendment substantially restricts the power of state governments. It imposes requirements on them that they didn’t used to have,” Levy said.
“Whenever the constitution limits state power, you get some resistance to that,” he said. “There were resistances to original provisions of the Constitution, some of those still sort of persist, and where the Constitution in other provisions restricts states’ power, you sometimes get conflicts.”
Even before the 2016 session got underway, abortion was already front-and-center before the Kansas Court of Appeals in a case challenging an abortion bill lawmakers passed last year, and the 14th Amendment was at the center of that case.
In the landmark case Roe v. Wade, the U.S. Supreme Court said that a woman’s right to have an abortion was protected as part of the Constitution’s guaranty of a right to privacy — a right not specifically mentioned, but which the court, seven years earlier, had found to exist nonetheless.
As a result, the court said, the 14th Amendment puts great restrictions on the authority of states to interfere with that right because doing so could deprive them of “liberty” without due process of law.
In the case before the Kansas court, plaintiffs argue that the same guarantees of due process and equal protection found in the 14th Amendment must also be found in the Kansas Constitution.
But Kansas Attorney General Derek Schmidt’s office argued the words “due process” do not appear anywhere in the Kansas Constitution, and so if plaintiffs want to sue under a due process claim, they must go to federal court, not to state courts.
A decision in that case is expected at any time.
Meanwhile, in his State of the State address Tuesday night, Republican Gov. Sam Brownback announced another initiative aimed at restricting access to abortion in Kansas.
“Today, I am directing (Kansas Department of Health and Environment) Secretary Susan Mosier to ensure that not a single dollar of taxpayer money goes to Planned Parenthood through our Medicaid program,” Brownback said. “I welcome legislation that would enshrine this directive in state law.”
Planned Parenthood of Kansas and Mid-Missouri immediately issued a statement announcing they would challenge that order.
“Several states including Arkansas, Texas and Louisiana have tried and failed to cut Medicaid funding to Planned Parenthood health centers,” the organization said. “Courts have repeatedly ruled the measure unconstitutional.”
Last year, the U.S. Supreme Court ruled, in a 6-3 decision, that the 14th Amendment requires states to grant marriage licenses to same-sex couples and to give full recognition to those marriages.
That came on the heels of a 2003 decision in which the court used the 14th Amendment to strike down sodomy laws in Texas, Kansas and elsewhere that criminalized homosexual activity.
Yet, just in the first week of the 2016 session, the issue of gay rights came up no fewer than three times in the Kansas Legislature: twice in the context of whether the state can discriminate against same-sex couples seeking to become foster parents or adoptive parents; and once in the form of a bill seeking to add sexual orientation to the list of classifications included in the Kansas Act Against Discrimination.
“It’s an equal protection argument. Everyone gets equal protection of the laws,” said Tom Witt, executive director of Equality Kansas, a gay rights advocacy group.
But Levy, KU’s constitutional law professor, said gay rights is a classic example of issues that draw conflict in state governments because it’s a set of rights not specifically mentioned in the Constitution, but rather interpreted to be there by the courts.
“When you have judicial decisions that treat into highly volatile, controversial areas, states are more likely to be resistant to judicial interpretations,” he said. “For something as significant as same-sex marriage, for example, it may take a while before the ruling of the court becomes acceptable.”
As the Legislature is meeting, both a state court and a federal court are weighing a law enacted in 2011, requiring all new voters in Kansas to show proof of U.S. citizenship in order to register.
In the federal court case, the arguments challenging that law are firmly rooted in the 14th Amendment.
“The Plaintiffs, both U.S. citizens and Kansas residents, have had their right to vote infringed by the documentation requirement,” the plaintiffs stated in their complaint. “This overly broad burden is not narrowly tailored to any compelling state interest which renders the law violative of the 14th Amendment to the U.S. Constitution.”
For his part, though, Kansas Secretary of State Kris Kobach, who pushed for the law, says there is a compelling state interest in requiring proof of citizenship, preventing non-U.S. citizens from voting in Kansas elections.
And he says the requirement to show proof of citizenship should not be an onerous burden on anyone who truly wants to vote. All that is required under the law is a birth certificate, a passport or some other form of identity that shows a person was born in the United States or has since become a naturalized citizen.
The court is expected to hold a hearing soon on the plaintiffs’ motion for an injunction to prevent state and county officials from canceling the applications of all those who have attempted to register, but have not produced the required documents after more than 90 days.
The 14th Amendment, or at least the concept behind it, is also central to the ongoing battle over school finance in Kansas.
The Kansas Constitution imposes a duty on the Legislature to make “suitable provision” for financing public schools. It also contains an equal protection clause similar to the ones in the Fifth and 14th Amendments.
In a series of cases, Kansas courts have ruled that those provisions mean the state must provide enough money for schools to produce the outcomes that are expected, and that the money the state provides must be distributed equitably among all the districts so that the quality of education a child receives does not vary depend on where he or she grows up.
A case is now pending before the Kansas Supreme Court that challenges the current school funding mechanism under both of those grounds. The Supreme Court is expected to rule on the equity portion of the case sometime during the 2016 session.
Levy said the 14th Amendment continues to be a source of controversy and litigation because it seems so simple on its face, but is infinitely more complex under the surface.
“Take a simple phrase, like the equal protection of the laws. That phrase seems simple, but think about all the different laws and all the different ways in which the laws treat people differently, and try to decide exactly how that principle is going to apply,” he said.
“One hundred and forty-nine years of equal protection doesn’t mean you have 149 years of knowing exactly what it means,” he said. “And it doesn’t mean that particular judicial decisions have been around that long. When you have novel judicial interpretations that change the way the law in ways that go against what sme people have become accustomed to, you may get resistance.”