Kentucky and the Fourteenth Amendment

In the case of Bourke v. Beshear, federal district judge John Heyburn found Kentucky's discriminatory marriage laws unconstitutional under the Equal Protection Clause of the Fourteenth Amendment, which reads, "No State shall...deny to any person within its jurisdiction the equal protection of the laws."

Kentucky has an interesting relationship with the Fourteenth Amendment, which is one of the three "Reconstruction Amendments" added to the U.S. Constitution in the immediate wake of the Civil War. The Thirteenth Amendment abolished slavery. The Fifteenth Amendment ensures voting rights regardless of race, skin color, or "previous condition of servitude." And the Fourteenth Amendment extends the due process and equal protection limitations imposed on the federal government by the Fifth Amendment to state governments as well.

It does a disservice to history to claim that the ratification of the Reconstruction Amendments was anything but a tumultuous, highly controversial process. The former Confederate states had to be forced, via martial law and exclusion from Congress, to accept them. Some other states not part of the Confederacy actually refused - some for over a century - to ratify the new Amendments at all.

Kentucky was one of those states. When originally presented with the Fourteenth Amendment, then-governor (and former Union colonel) Thomas Bramlette opposed it on the grounds that the post-war treatment of the Confederate states was unfair, and the ratification process therefore corrupted. Both the Kentucky House and Senate agreed. Kentucky didn't ratify the Fourteenth Amendment until over one hundred years later, in March of 1976. Kentucky was the last of the original thirty-seven states to do so.

Even though Kentucky rejected the Fourteenth Amendment for so long, federal courts had no problem hearing challenges to Kentucky laws arising under it. Most suits brought under that Amendment challenged Kentucky tax laws as unfair and unequal. But other cases were of more social significance.

In March, 1904, the Kentucky legislature passed a criminal statute prohibiting private schools and colleges from accepting both white and black students simultaneously:

SEC. 1. That it shall be unlawful for any person, corporation or association of persons to maintain or operate any college, school or institution where persons of the white and negro races are both received as pupils for instruction, and any person or corporation who shall operate or maintain any such college, school or institution shall be fined $1,000, and any person or corporation who may be convicted of violating the provisions of this act shall be fined $100 for each day they may operate said school, college or institution after such conviction.

It may not be necessary to note that in 1904, $1000 was a very stiff penalty. By October, 1904, the grand jury of Madison County indicted Berea College for violating the statute, and the school was convicted at trial. In 1906, the state Court of Appeals (then the highest court in Kentucky) affirmed the conviction. The U.S. Supreme Court agreed to hear the case to reconsider Berea's conviction - and the constitutionality of the law under the Fourteenth Amendment.

It may or may not surprise you to learn that in 1908, integration-minded Berea College was out of luck. The Supreme Court considered the case merely an issue of state police power over corporations within its borders:

We need concern ourselves only with the inquiry whether the first section can be upheld as coming within the power of a State over its own corporate creatures.

Berea College v. Kentucky, 211 U.S. 45, 58 (1908). Berea being a private school, and the state of Kentucky having authority to dictate the operations of corporate businesses, the Supreme Court found no violation of the Fourteenth Amendment.

The Supreme Court wasn't always so deferential to facially discriminatory laws in Kentucky, however. In 1917, the Court heard a challenge to a Louisville ordinance which restricted the right of a white citizen to sell his property to a black purchaser.

Writing for a unanimous Court which included Louisville native Louis D. Brandeis, Justice William R. Day wrote:

It is urged that this proposed segregation will promote the public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created or protected by the Federal Constitution.

It is said that such acquisitions by colored persons depreciate property owned in the neighborhood by white persons. But property may be acquired by undesirable white neighbors or put to disagreeable though lawful uses with like results.

We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law. That being the case the ordinance cannot stand.

Buchanan v. Warley, 245 U.S. 60, 81-82 (1917).

These cases were heard many decades before Kentucky finally got around to ratifying the Fourteenth Amendment. Since then, another important equal protection case rose through the system, once again originating in Louisville.

An African American named James Batson was tried and convicted of second-degree burglary by an all-white jury. The prosecutor had struck all the black members of the jury pool before the trial began and Batson's attorney moved to discharge the remaining jury members on Sixth and Fourteenth Amendment grounds. The trial court judge rejected this motion. After his conviction, Batson appealed to the Supreme Court of Kentucky, but that court also ruled against him.

Batson, being represented by Louisville public defense attorney David Niehaus, took his case to the U.S. Supreme Court. Justice Lewis Powell wrote the opinion of the Court, while his impassioned fellow Justices added four separate concurrences and two dissents. Powell wrote:

Purposeful racial discrimination in selection of the [jury] violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure...

Those on the  [jury] must be "indifferently chosen," to secure the defendant's right under the  Fourteenth Amendment  to "protection of life and liberty against race or color prejudice..."

The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.

Batson v. Kentucky, 476 U.S. 79, 86-87 (1986). Now, trial attorneys all across the United States may make "Batson Challenges" when they suspect opposing counsel has purposely excluded people from jury selection because of their race.

Judge Heyburn's recent ruling in Bourke v. Beshear is not just another example of important progress made in the full realization of the Fourteenth Amendment's promise of equality under the law. It's also another important chapter in Kentucky's complex relationship with the U.S. Constitution. Though at times stubbornly resisted, the critical protections offered by the Fourteenth Amendment continue to bring progress to the Commonwealth.