Yes, the law may be changed. That is a job for elected representatives in state legislatures. Judges are not empowered to change the law, but to interpret it and define ambiguous terms. More importantly, the 5th and 14th amendment have not changed and because no single person, no federal or state representative who voted to ratify the amendment, or no contemporary thought at the time believed that it was granting an absolute right to same sex marriage means that those amendments did not grant a right of same sex marriage.
Any interpretation which denies thousands of years of understanding, and when the term is proposed to be changed, more than 30 state legislatures amend their constitutions to say “Nope, we are not making that change” is not an interpretation, but judicial fiat.
Is there a political movement to say that C-section births are not really “births”? If it ever gained traction, a redefinition would pass unanimously in every state legislature. Representative democracy is part of the constitutional process. To point out an absurd example of which there is no danger of causing an issue presumes that legislatures will be arbitrary and irrational, decreeing that C-section babies are not citizens, for example.
If there is a belief that is remotely possible, then we really do need to have rule by five lawyers or a king because the people cannot be trusted to rule themselves.
And…to overrule unconstitutional laws. Which they did. The DOMA violated the equal protection clause of the constitution.
If your beef is with judicial review, then that’s another matter. Do you hold that, under your “legislationist” interpretation of the courts’ role, the courts should not be able to negate or nullify a law which violates the constitution? If so, we need a new thread, because that wouldn’t be relevant to the actual situation.
(Hell, as it is, this is all a highjack from the original topic.)
I agree that judicial review is an accepted part of the constitutional process. So, if you would, tell me, when did the traditional definition of marriage violate the equal protection clause? In 1868? In 1900? In 1950? In 2003? In 2015?
At some point the same words had to have come to mean different things, because it is amazing how the authors of the Bill of Rights in 1789 never understood the 5th amendment to require same sex marriage, nor did the authors of the 14th amendment believe the same. Then more than one hundred years pass where nobody even considers that same sex marriage is even a possibility. Throughout many of those years, these same individuals made the conduct which would be part of a same sex marriage (homosexual sodomy) a crime.
Would you agree that in 1868 the equal protection clause did not mean that states must recognize same sex marriage?
Even granting your implicit, but false, claim that there has been only one “traditional” definition: Yes, as soon as the amendment was ratified. We just didn’t realize it until very recently, though. We similarly didn’t recognize that racial segregation was a violation for over a century.
It’s no more amazing than the fact that they did not understand the right to vote extending to women, or non-land-owners, or blacks, even without the 3/5 discount. They knew a lot of things to be right and yet they fell short of those ideals, just like we do, although we’re painstakingly fixing those problems, one at a time, as we come to understand them.
It would not have been recognized to mean it, but that’s slightly different from saying “it did not mean it.”
If you interpret the words literally, it clearly does (and did then) compel the states to recognize same sex marriage. No Supreme Court Justice would ever have interpreted the words literally in 1868. Where’s the flaw? Human nature.
And how, exactly, were blacks and women enfranchised? You picked two bad examples if you’re trying to support the judicial philosophy of a “living constitution”.
The constitution was amended…but there’s no evidence to show that the 14th Amendment’s Equal Protection clause didn’t mean that blacks and women were already enfranchised.
A straightforward reading of it would indicate that they were. Justices at the time were not willing to read the words to mean what they mean. Shrug. A bad era in our history.
In the same way, you can’t demonstrate that abortion rights are not protected under the Ninth. They may be…or they may not be…but you cannot point to any evidence that proves that they aren’t.
No evidence? The fact that we enacted amendments is evidence. If you want to argue that it’s not conclusive evidence, that would be one thing, but to say there is “no evidence” is to dispute the historical facts.
The question is who decides these matters, and right now it is SCOTUS. Their word is final, at least until the Constitution is changed. It’s the system we’ve been using and it has worked well.
The 14th Amendment is there not to protect the majority, rather to protect the minority. It is rights that are guarantied to all citizens. Do we have such an ideal today, of course not … but we are working that direction.
For most of human history, women were property, not people … it’s only been the past few hundred years that man was disallowed the beating to death of his wife … not sure why I should re-think these new protections given to women.
That wasn’t the question. You claimed that “The 14th Amendment is there not to protect the majority, rather to protect the minority”, which is factually incorrect. You are now making a completely different argument, which means you are rethinking your position. I thought you would want to do that.
The 14th amendment is there to protect whomever needs protecting, be they minority, majority or whatever.
I’ll stand by what I said, as I crafted it very carefully to fit the facts: there is no evidence that the language of the 14th amendment did not mean that blacks and women were already enfranchised.
This may be somewhat vacuous or tautological, because it’s very hard to demonstrate that a phrase “doesn’t mean” something specific. It’s classically impossible to “prove a negative.”
Personally, I think it is obvious that the language of the 14th amendment did apply to voting rights for blacks and women in 1868 (well, after July 9, okay?) and that it was a failure of the court system, as it was then composed, that no justice would have ruled that way.
No judge then would have ruled for SSM, but today, SSM is legal, largely because of the language of the 14th amendment. The language hasn’t changed; people’s interpretation of it certainly has.
Good … then we’re agreed that the 14th Amendment fully and completely protects SSM in all the States regardless of what the States believe. There is no new law here, this is old law correctly implemented.
Could you cite the law establishing marriage as the union of two men, or two women, that the 14th was protecting that the Supreme Court didn’t make up?
According to the majority decision, it’s implied by the Due Process clause. That’s how they interpret it, which is something they can do. You interpret it otherwise, but that doesn’t mean they’re making it up. That’s just your interpretation of their interpretation.
