# Federal bankruptcy court blasts Defense of Marriage Act **URL:** \ **Category:** Great Debates\ **Created:** [June 15, 2011, 4:40am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528 "2011-06-15T04:40:33Z")\ **Posts on this page:** 20\ **Page:** 7
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 22, 2011, 6:08am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/121 "2011-06-22T06:08:26Z")
> [@CitizenPained](#): > > **Villa,** please don’t nitpick my semantics. We were talking about SCOTUS. Federal common law is _precedent_, and it is based on constitutionality. It is something a shade different than what states have in place. You know that. :rolleyes: It’s not nitpicking. Statements like “the legislature alone should make law” are just refusing to recognize that throughout Anglo-American legal history the role of judges in making law has been extremely important. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 22, 2011, 6:10am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/122 "2011-06-22T06:10:11Z")
> [@Bricker](#): > > Did any court entertain such an argument? Did any suffragist make that argument in any sort of notable forum? Minor v. Happersatt (1875), unless I’m misunderstanding your question. That’s the court case that said the 14th amendment doesn’t give women the right to vote. From the summary of the case in the decision: > [@](#): > > The fourteenth amendment to the Constitution of the United States, in its first section, thus ordains: > > ``` > '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.' > > ``` > > And the constitution of the State of Missouri thus ordains: > > ``` > 'Every male citizen of the United States shall be entitled to vote.' > > ``` > > Under a statute of the State all persons wishing to vote at any election, must previously have been registered in the manner pointed out by the statute, this being a condition precedent to the exercise of the elective franchise. > > In this state of things, on the 15th of October, 1872 (one of the days fixed by law for the registration of voters), Mrs. Virginia Minor, a native born, free, white citizen of the United States, and of the State of Missouri, over the age of twenty-one years, wishing to vote for electors for President and Vice-President of the United States, and for a representative in Congress, and for other officers, at the general election held in November, 1872, applied to one Happersett, the registrar of voters, to register her as a lawful voter, which he refused to do, assigning for cause that she was not [88 U.S. 162, 164] a ‘male citizen of the United States,’ but a woman. She thereupon sued him in one of the inferior State courts of Missouri, for wilfully refusing to place her name upon the list of registered voters, by which refusal she was deprived of her right to vote. > > The registrar demurred, and the court in which the suit was brought sustained the demurrer, and gave judgment in his favor; a judgment which the Supreme Court affirmed. Mrs. Minor now brought the case here on error. > > Mr. Francis Minor (with whom were Messrs. J. M. Krum and J. B. Henderson), for the plaintiff in error, went into an elaborate argument, partially based on what he deemed true political views, and partially resting on legal and constitutional grounds. These last seemed to be thus resolvable: > > 1st. As a citizen of the United States, the plaintiff was entitled to any and all the ‘privileges and immunities’ that belong to such position however defined; and as are held, exercised, and enjoyed by other citizens of the United States. > > 2d. The elective franchise is a ‘privilege’ of citizenship, in the highest sense of the word. It is the privilege preservative of all rights and privileges; and especially of the right of the citizen to participate in his or her government. > > 3d. The denial or abridgment of this privilege, if it exist at all, must be sought only in the fundamental charter of government,-the Constitution of the United States. If not found there, no inferior power or jurisdiction can legally claim the right to exercise it. > > 4th. But the Constitution of the United States, so far from recognizing or permitting any denial or abridgment of the privileges of its citizens, expressly declares that ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.’ > > 5th. If follows that the provisions of the Missouri constitution and registry law before recited, are in conflict with and must yield to the paramount authority of the Constitution of the United States. The court decided: > [@](#): > > The [14th] amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. No new voters were necessarily made by it. Indirectly it may have had that effect, because it may have increased the number of citizens entitled to suffrage under the constitution and laws of the States, but it operates for this purpose, if at all, through the States and the State laws, and not directly upon the citizen. > > It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. [88 U.S. 162, 172] But if it was not, the contrary may with propriety be assumed. ---
**Author:** ![Farmer\_Jane](https://avatars.discourse-cdn.com/v4/letter/f/bbe5ce/32.png) [@Farmer\_Jane](https://boards.straightdope.com/u/Farmer_Jane)\ **Post date:** [June 22, 2011, 6:31am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/123 "2011-06-22T06:31:34Z")
> [@villa](#): > > It’s not nitpicking. Statements like “the legislature alone should make law” are just refusing to recognize that throughout Anglo-American legal history the role of judges in making law has been extremely important. I’m just asking that you take what I say in context. edit: I just re-read. I was not decrying judicial review or trying to spout some right-wing ‘legislate from the bench’ BS, but it’s possible I misunderstood what _you_ originally said. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 22, 2011, 6:36am UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/124 "2011-06-22T06:36:53Z")
> [@Bricker](#): > > Did any court entertain such an argument? Did any suffragist make that argument in any sort of notable forum? I don’t know. Whether or not they did doesn’t really have any bearing on my argument, which has nothing to do with the actual content or application of the 14th. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 22, 2011, 12:25pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/125 "2011-06-22T12:25:03Z")
> [@Captain\_Amazing](#): > > Minor v. Happersatt (1875), unless I’m misunderstanding your question. That’s the court case that said the 14th amendment doesn’t give women the right to vote. From the summary of the case in the decision: > > The court decided: > > > [@](#): > > > > It is clear, therefore, we think, that the Constitution has not added the right of suffrage to the privileges and immunities of citizenship as they existed at the time it was adopted. This makes it proper to inquire whether suffrage was coextensive with the citizenship of the States at the time of its adoption. If it was, then it may with force be argued that suffrage was one of the rights which belonged to citizenship, and in the enjoyment of which every citizen must be protected. [88 U.S. 162, 172] But if it was not, the contrary may with propriety be assumed. Well, then, seems the question WAS raised, and answered definitively in the negative. The Fourteenth Amendment did NOT confer the right to vote upon women. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 22, 2011, 12:30pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/126 "2011-06-22T12:30:42Z")
> [@Miller](#): > > I don’t know. Whether or not they did doesn’t really have any bearing on my argument, which has nothing to do with the actual content or application of the 14th. Oh. Then would you mind restating your argument? If it has nothing to do with any actual content or application of the 14th, then I am afraid I have misunderstood it. ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [June 22, 2011, 1:06pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/127 "2011-06-22T13:06:52Z")
> [@Bricker](#): > > Well, then, seems the question WAS raised, and answered definitively in the negative. The Fourteenth Amendment did NOT confer the right to vote upon women. Obviously, hence the 19th. But the state of 14th amendment jurisprudence has changed pretty substantially since 1875, and I think it’s quite probable that, were this a case of first impression now rather than 1875, the court would have come to a different result. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 22, 2011, 1:23pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/128 "2011-06-22T13:23:15Z")
> [@Captain\_Amazing](#): > > Obviously, hence the 19th. But the state of 14th amendment jurisprudence has changed pretty substantially since 1875, and I think it’s quite probable that, were this a case of first impression now rather than 1875, the court would have come to a different result. True. But it’s my contention that since 1875 we have surrendered to the courts substantial law-making authority, and that this is a perfect example. We now rely on the courts to fix general problems with the law; we want the Constitution to serve as a general moral guide. “Unconstitutional” has become synonymous in the public mind with “wrong,” “unwise,” and “unjust,” and we seem to want our federal judges to be the ones to correct wrong, unwise, and unjust laws instead of our legislators. That’s a perfectly workable system, but it’s not as consistent with our notions of self-government as it could or should be. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 22, 2011, 1:30pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/129 "2011-06-22T13:30:26Z")
A follow-on thought about how this thinking evolves to truly change the original meanings… In 1964’s _Reynolds v Sims_, the Warren Court famously found that “…legislators represent people, not trees or acres…” so the Equal Protection Clause requires that seats in both houses of a state’s legislature have to be apportioned on a population basis. That would have been a real surprise to the proponents of the Fourteenth Amendment, some of whom were US Senators, a house decidely NOT apportioned on a population basis. ---
**Author:** ![Fear\_Itself](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/fear_itself/32/19637_2.png) [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)\ **Post date:** [June 22, 2011, 2:16pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/130 "2011-06-22T14:16:28Z")
> [@Little\_Nemo](#): > > Scalia is an originalist. Originalism is a legal doctrine that essentially says that the meaning of the United States Constitution is whatever Antonin Scalia thinks it should be. We can always hope Scalia chokes to death on a cannoli before the end of Obama’s second term. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 22, 2011, 3:20pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/131 "2011-06-22T15:20:29Z")
> [@Bricker](#): > > A follow-on thought about how this thinking evolves to truly change the original meanings… In 1964’s _Reynolds v Sims_, the Warren Court famously found that “…legislators represent people, not trees or acres…” so the Equal Protection Clause requires that seats in both houses of a state’s legislature have to be apportioned on a population basis. > > That would have been a real surprise to the proponents of the Fourteenth Amendment, some of whom were US Senators, a house decidely NOT apportioned on a population basis. And another one: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. What does that mean? How do you ignore the then-understood meaning of “suits at common law?” Or if you don’t, how do you justify any new spin on what this amendment requires? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 22, 2011, 3:31pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/132 "2011-06-22T15:31:16Z")
> [@Bricker](#): > > And another one: > > In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. > > What does that mean? > > How do you ignore the then-understood meaning of “suits at common law?” > > Or if you don’t, how do you justify any new spin on what this amendment requires? I think that clause is actually very important for constitutional interpretation. It shows that the framers, when they chose to be specific, knew how to be specific. Which leads me to the belief that where they chose to use more general language, they intended it to be applied in a different fashion. So if we look at the Fourteenth in light of the Fifteenth (which was very close in time, though not exactly the same), the fact that the Fifteenth specifically states on grounds of race, while equal protection in the Fourteenth isn’t, suggests to me that the drafters did not intend the protections of the Fourteenth to be applied only on racial grounds. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 22, 2011, 3:39pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/133 "2011-06-22T15:39:37Z")
> [@villa](#): > > I think that clause is actually very important for constitutional interpretation. It shows that the framers, when they chose to be specific, knew how to be specific. Which leads me to the belief that where they chose to use more general language, they intended it to be applied in a different fashion. > > So if we look at the Fourteenth in light of the Fifteenth (which was very close in time, though not exactly the same), the fact that the Fifteenth specifically states on grounds of race, while equal protection in the Fourteenth isn’t, suggests to me that the drafters did not intend the protections of the Fourteenth to be applied only on racial grounds. Except that the framers of the Seventh Amendment were not the same people as the framers of the Fourteenth. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 22, 2011, 4:59pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/134 "2011-06-22T16:59:46Z")
The framers of all the amendments are different, unless any were adopted unanimously. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 22, 2011, 5:10pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/135 "2011-06-22T17:10:18Z")
> [@Bricker](#): > > Except that the framers of the Seventh Amendment were not the same people as the framers of the Fourteenth. I wasn’t making the argument that they were. My argument is that given that there are very specific elements of the Bill of Rights, we can presume that where the Bill of Rights is less specific, it is so for a reason. And when we look at the 14th and 15th in conjunction, we can see that those framers were capable of being specific when they chose to be - as in the 15th, and less specific when they chose to be, as in the Equal Protection clause. ---
**Author:** ![psychonaut](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/psychonaut/32/4655_2.png) [@psychonaut](https://boards.straightdope.com/u/psychonaut)\ **Post date:** [June 22, 2011, 5:13pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/136 "2011-06-22T17:13:55Z")
> [@Really\_Not\_All\_That\_Bright](#): > > The framers of all the amendments are different, unless any were adopted unanimously. I think you mean “simultaneously”, not “unanimously”. And it’s my understanding that the first ten amendments were indeed adopted at more or less the same time. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 22, 2011, 5:21pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/137 "2011-06-22T17:21:25Z")
> [@villa](#): > > I wasn’t making the argument that they were. My argument is that given that there are very specific elements of the Bill of Rights, we can presume that where the Bill of Rights is less specific, it is so for a reason. > > And when we look at the 14th and 15th in conjunction, we can see that those framers were capable of being specific when they chose to be - as in the 15th, and less specific when they chose to be, as in the Equal Protection clause. Did you use that same analysis with the Second Amendment, by chance? ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 22, 2011, 5:49pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/138 "2011-06-22T17:49:25Z")
> [@Bricker](#): > > Did you use that same analysis with the Second Amendment, by chance? I don’t need to. The Second Amendment by its plain language provides for an individual right to own firearms. No need to take the analysis further. ---
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [June 22, 2011, 5:52pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/139 "2011-06-22T17:52:37Z")
> [@psychonaut](#): > > I think you mean “simultaneously”, not “unanimously”. And it’s my understanding that the first ten amendments were indeed adopted at more or less the same time. I think he means unanimously. Given that otherwise they are the product of compromises. ---
**Author:** ![Miller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/miller/32/481_2.png) [@Miller](https://boards.straightdope.com/u/Miller)\ **Post date:** [June 22, 2011, 7:54pm UTC](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528/140 "2011-06-22T19:54:32Z")
> [@Bricker](#): > > Oh. > > Then would you mind restating your argument? If it has nothing to do with any actual content or application of the 14th, then I am afraid I have misunderstood it. My argument is that the existence of the 19th amendment, by itself, doesn’t prove anything, one way or the other, about the 14th amendment. There seems to be plenty of evidence that the 14th was never intended to give equal rights to women. But the existence of the 19th is not, in and of itself, part of that evidence. [Previous page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=6) [Next page](https://boards.straightdope.com/t/federal-bankruptcy-court-blasts-defense-of-marriage-act/585528.md?page=8)