The 14th amendment certainly gave black people equal rights under the law in 1868. It was the Court that stripped those rights through decisions like the Civil Rights Cases, Plessy, and a total refusal to strike down Jim Crow laws as badges and incidents of slavery.
Anyone with two brain cells could see that the enforced separation was EXACTLY that. It wasn’t some craziness dreamed up by blacks. It was clear that white people didn’t want to be around blacks in railroad cars. For the Court to hand waive that away was the problem, and not the original understanding of the 14th amendment.
I disagree with you on sexual orientation. The framers of the 14th wanted to place blacks on equal footing with whites in society; that was the very purpose of the amendment. Gay people? Let’s say that I proposed an amendment to the 14th stating that “Nothing in this amendment shall prohibit any state or this government the power to retain marriage as an institution between one man and one woman” What do you think the vote tally on that would have been in each House?
Suppose you offered the following amendment: “Although this amendment is primarily directed towards those of African descent, we nonetheless invite future judges on future courts to expand these rights to include persons who wish to have same sex relationships or to terminate a pregnancy if such things become important in the future.” Any predictions on the vote tally?
Since, at least I think, you have to concede how these votes would turn out, then it can’t realistically be argued that the 14th meant to include them.
You’re confusing cause and effect. Segregation didn’t originate in the courts. It was enacted in legislatures. That’s where the rights were stripped away. The courts should have overturned those laws and failed to do their job. But the Supreme Court didn’t take any rights from Homer Plessy that he hadn’t already lost before he filed his suit.
And if the Fourteenth Amendment had the text you’ve mentioned, I agree that gay people don’t have a Constitutional right to marriage.
But it’s not in the text. What it says is “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.” No codicil in there that says “unless they’re gay.” So the text seems pretty clear. Are people entitled to equal protection? Yes. Are gays people? Yes. Are gays entitled to equal protection? Yes.
Men and women have been legally allowed to marry throughout history. In 1967, the Supreme Court realized that equal protection meant that black people and white people had the right to get married to each other. Pretty soon, the Supreme Court should realize that equal protection means gay people have the right to get married to each other. Interracial marriages didn’t require a new amendment to become legal and gay marriage doesn’t either. It just requires the court to recognize the equality that’s existed since 1868.
It absolutely did. Homer Plessy had the right, under the PorI clause of the 14th amendment, to have laws passed by his state legislature which didn’t single him out based upon his race. Or at least without a really good reason. Wanting to sit in a railroad car away from blacks or mulattoes is not a good reason. The Court allowed Plessy to be treated as as second class citizen under the color of state law. It was wrong then and remains wrong to allow that injustice.
Bans on miscegenation were wrong for the very same reason: It showed state disapproval of “pure” white women marrying blacks. The 14th prohibited that because it was meant to give all races equal protection under the laws and a law should not be passed simply because of racial characteristics.
I’m sure the drafters didn’t feel the need to include that text because it felt that such a thing was obvious. Of course gays are people. Murderers are people like bank robbers, bigamists, or bakers who would like to work more than 60 hours per week are people. If you have the 14th amendment test that only asks if someone is a person then every single law would run afoul of the equal protection clause.
If I’m an alcoholic or just simply like to drink then your DUI and public intoxication laws hurt me more than the next guy. That denies me equal protection, no?
It may have been dicta but it wasn’t treated as such. Slaughterhouse ranks up there with the worst SCOTUS decisions IMO.
Can you think of a way to overturn Slaughterhouse? What type of test case could be brought that would be an avenue to do so? Jury trials? Maybe if some national guard troops were forcibly quartered in a home somewhere. I think McDonald was the last best chance.
Was it? I’m not prepared to say that unregulated butchery is a privilege or immunity of citizenship.
I agree that the current Court doesn’t want to hear it. It’s flippant, one sentence dismissal of the doctrine shows that it probably won’t be resurrected in our lifetime. But it should…
Really? You’re going to stick with that? You’re claiming that Plessy had the right to sit anywhere he wanted to on a train up until the point when the Supreme Court stripped that right away from him? Did they issue a court order which told the East Louisiana Railroad that it had to begin a policy of segregation in its passenger cars?
That denies you equal protection, no.
Equal protection doesn’t say you can do anything you want. It says that the law treats everyone equally. So if a law said that men can drink in public but women can’t, then it’s not an equal law. But a law that says that neither men or women can drink in public is equal towards everyone.
So if the law allows straight people to marry each other but doesn’t allow gay people to marry each other, then it’s not equal. If you want to enact a law that says nobody can get married on a Tuesday, then fine go ahead - as long as it applies to everyone.
I don’t think that a law saying that nobody can get married on Tuesday would pass rational basis review. Why set such an arbitrary limit? PorI would also allow me to get married on a Tuesday absent other circumstances.
Why do you jump to gender and sexual orientation? ANY law makes distinctions. What if a law prohibits “habitual drunkards” from buying alcohol? Is that a bad distinction?
Your side always quotes Section 1 of the 14th, even though Section 2 expressly limits voting to only males. How can you say that a law forbidding X when done by females but permissible when done by males under Section 1 of the 14th would be forbidden when Section 2 explicitly limits voting to males? Did the drafters violate their own law? Or maybe you think something that the text doesn’t really mean?
Regarding marriage, all people have a right to marry an opposite sex person. That applies equally to everyone. Straights and gays alike. To say that a certain subset of the population wishes to marry a same sex person and that such thing must be recognized as right is not observing equal protection but conferring an extra and special protection on that subset.
Before you say that this is just like interracial marriage, see section 1 of the 14th above which was solely for the purpose of outlawing racial discrimination.
Your Plessy argument is pretty silly. Of course any person denied his or her rights is done so by legislation first and must suffer until his appeals are heard. The Court in Plessy made blacks wait another fifty plus years instead of recognizing what they were already granted by the 14th: equal protection under the law.
It wasn’t unregulated butchery - it was the ability to engage in trade and commerce unfettered by government. I as a libertarian would say that is a privilege or immunity of citizenship. SCOTUS disagreed.
The problem I see is there is no avenue to challenge the current jurisprudence.
What happened was the 14th amendment gave blacks equal rights, but that the Supreme Court came along and decided since society had changed they would substitute their wisdom for the plain language of the constitution. It was wrong for them to do it then and it it still wrong for them to do it now. Anytime the Supreme Court changes the constitution due to evolving standards then it is wrong, whether it is civil rights, the death penalty, gay marriage, or abortion. Evolving standards are for legislators, enforcing the constitution as written is for the supreme court.