# Judge orders Colorado baker to serve gay couples **URL:** \ **Category:** Great Debates\ **Created:** [December 8, 2013, 1:57am UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792 "2013-12-08T01:57:00Z")\ **Posts on this page:** 20\ **Page:** 19
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2017, 5:03pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/361 "2017-06-29T17:03:54Z")
> [@Whack-a-Mole](#): > > If there was no 19th amendment and women still could not vote today I think it’d be a slam-dunk applying the 14th amendment to give them the right to vote. Given how the case law has developed, I think you’re right. But this illustrates my point: judges have expanded the Fourteenth Amendment. When women’s suffrage was contemplated, it was generally agreed that the Fourteenth Amendment was of no assistance to that cause. Now, somehow, it is. That is a substantive change, and it came from judges. ---
**Author:** ![puzzlegal](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puzzlegal/32/3827_2.png) [@puzzlegal](https://boards.straightdope.com/u/puzzlegal)\ **Post date:** [June 29, 2017, 5:22pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/362 "2017-06-29T17:22:19Z")
I think what has changed is that women are now considered “citizens” rather than “dependents”. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2017, 5:28pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/363 "2017-06-29T17:28:16Z")
> [@puzzlegal](#): > > I think what has changed is that women are now considered “citizens” rather than “dependents”. I don’t think that. Women were always citizens. _Minor v. Happersett_, 1875. ---
**Author:** ![RitterSport](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rittersport/32/6326_2.png) [@RitterSport](https://boards.straightdope.com/u/RitterSport)\ **Post date:** [June 29, 2017, 5:28pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/364 "2017-06-29T17:28:34Z")
> [@Bricker](#): > > See post 357, which in turn refers to post 336. The latter post was what occasioned the comment about legislators. It just seems that the comment is inapt in this particular case, but I guess your comment just refers to **Trinopus** ’s statement and is not about the subject of this thread, which is fine. Thanks again for clarifying. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2017, 5:31pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/365 "2017-06-29T17:31:54Z")
> [@RitterSport](#): > > It just seems that the comment is inapt in this particular case, but I guess your comment just refers to **Trinopus** ’s statement and is not about the subject of this thread, which is fine. Thanks again for clarifying. Happy to help. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 29, 2017, 5:38pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/366 "2017-06-29T17:38:13Z")
> [@Bricker](#): > > But this illustrates my point: judges have expanded the Fourteenth Amendment. When women’s suffrage was contemplated, it was generally agreed that the Fourteenth Amendment was of no assistance to that cause. > > Now, somehow, it is. That is a substantive change, and it came from judges. It astonishes me that this is a problem for you. Perhaps in the legal world words mean something different than what the rest of us read. _- 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._ Ok…easy enough. Women are citizens as well as men. _- No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States_ Ok…voting is a privilege citizens have and states cannot abridge that privilege. _- …nor shall any state…deny to any person within its jurisdiction the equal protection of the laws._ Ok…women are people and men voting and women not voting is blatantly not equal. Therefore, under the 14th amendment, women can vote. Plain language. Easily understood. Very straightforward it would seem. So please, do tell why it doesn’t mean what it says and was of “no assistance” in getting women the right to vote? ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 29, 2017, 6:08pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/367 "2017-06-29T18:08:48Z")
**Whack-a-Mole** , i tend to agree with the textual interpretation you’ve outlined here, but it’s worth noting that the judicial history on this is more complicated. The 14th amendment was clearly intended (the first two sections, at least) primarily to protect the rights of former slaves, and it enshrined in the Constitution the principle that citizenship is a birthright, and that citizens deserved the same privileges and immunities, due process, and equal protection of the laws. But even the 14th never explicitly provided a Constitutional right to vote, based on race or any other category. What the 14th did do, with respect to voting, was encourage states to allow former slaves to vote by creating a penalty, whereby a state’s representation in Congress would be reduced if it denied the elective franchise to groups such as African Americans. But the 14th went even further: it reduced congressional representation ONLY if MALE citizens over 21 years of age were denied the franchise. One real problem that arose with the 14th Amendment was that, for the very first time in American Constitutional history, it drew explicit distinctions based on sex. Late nineteenth century feminists and suffragists were incredibly angry about this, arguing that enshrining such differences in the Constitution was a terrible backwards step for the nation. The debate over the 14th amendment caused schisms between feminists and abolitionists, two groups that had often worked together in the preceding decades. In the _Minor v. Happersett_ case that **Bricker** referenced earlier, the decision of the Supreme Court said that voting had never been explicitly defined as a privilege of citizenship. The court gave numerous historical examples of voting as something often (in fact, almost always) restricted to males, and it also justified its decision by explicitly referencing the 14th amendment’s focus on male citizens. They also pointed to the 15th amendment, saying that, if voting and citizenship were truly coextensive, and if all people born in the United States are citizens, then why did we need an amendment that made it unconstitutional to deny the franchise based on “race, color, or previous condition of servitude”? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2017, 6:25pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/368 "2017-06-29T18:25:40Z")
> [@Whack-a-Mole](#): > > So please, do tell why it doesn’t mean what it says and was of “no assistance” in getting women the right to vote? You can read it yourself: [Minor v. Happersett](http://caselaw.findlaw.com/us-supreme-court/88/162.html). > [@](#): > > They are counted in the enumeration upon which the apportionment is to be made, but if they were necessarily voters because of their citizenship unless clearly excluded, why inflict the penalty for the exclusion of males alone? Clearly, no such form of words would have been selected to express the idea here indicated if suffrage was the absolute right of all citizens. > > And still again, after the adoption of the fourteenth amendment, it was deemed necessary to adopt a fifteenth, as follows: ‘The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude.’ The fourteenth amendment had already provided that no State should make or enforce any law which should abridge the privileges or immunities of citizens of the United States. If suffrage was one of these privileges or immunities, why amend the Constitution to prevent its being denied on account of race, &c.? Nothing is more evident than that the greater must include the less, and if all were already protected why go through with the form of amending the Constitution to protect a part? ---
**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 29, 2017, 6:35pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/369 "2017-06-29T18:35:33Z")
> [@Whack-a-Mole](#): > > _- No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States_ > > Ok…voting is a privilege citizens have and states cannot abridge that privilege. In **Minor** the Court found that voting is _not_ a privilege of citizenship. In some of the original 13 states the franchise was limited to landowners, free males, and so on. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 29, 2017, 6:37pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/370 "2017-06-29T18:37:11Z")
> [@mhendo](#): > > But even the 14th never explicitly provided a Constitutional right to vote, based on race or any other category. > > … > > In the _Minor v. Happersett_ case that **Bricker** referenced earlier, the decision of the Supreme Court said that voting had never been explicitly defined as a privilege of citizenship. The court gave numerous historical examples of voting as something often (in fact, almost always) restricted to males, and it also justified its decision by explicitly referencing the 14th amendment’s focus on male citizens. They also pointed to the 15th amendment, saying that, if voting and citizenship were truly coextensive, and if all people born in the United States are citizens, then why did we need an amendment that made it unconstitutional to deny the franchise based on “race, color, or previous condition of servitude”? Thanks. Very interesting. I would submit that the 14th need not be explicit in granting a right to vote and that it does not matter that is mentions men over the age of 21. The Equal Protection clause covers it. If the states permit voting then it has to apply that equally to all citizens and we have established that women are citizens. As to why we need the 15th amendment I think it was to be crystal clear to the southern states that abridging the right to vote for African-Americans is not allowed. They tried end-runs anyway with poll taxes and literacy tests and whatnot. ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 29, 2017, 7:30pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/371 "2017-06-29T19:30:43Z")
Also recall that the Constitution placed the responsibility of running elections to the States. There was not necessarily an expectation that all states would choose uniform requirements for a citizen to be able to vote. Thus the wording of the 26th Amendment. It did not specify exactly what the eligibility requirements are to vote, just that > [@26th Amendment](#): > > "The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State **on account of age.** … my **emphasis** It certainly left open the possibility that a citizen over age 18 might be denied the right to vote, but it would have to be a restriction based on something other than age. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 29, 2017, 7:33pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/372 "2017-06-29T19:33:26Z")
> [@Whack-a-Mole](#): > > The Equal Protection clause covers it. If the states permit voting then it has to apply that equally to all citizens and we have established that women are citizens. But a three-year-old toddler is a citizen under the provisions of the 14th Amendment. Would you allow that citizen to vote? 🙂 > [@Whack-a-Mole](#): > > As to why we need the 15th amendment I think it was to be crystal clear to the southern states that abridging the right to vote for African-Americans is not allowed. They tried end-runs anyway with poll taxes and literacy tests and whatnot. I agree with your assessment of the reasoning behind the 15th Amendment, but as a matter of logic, the Supreme Court’s argument about the 15th in _Minor v. Happersett_ has some merit, does it not? That is, if voting truly is a right of citizenship, and if all people born in the United States are citizens, then as a matter of law, you don’t need a separate amendment that protects citizens of a particular race from disenfranchisement. African Americans are already protected by virtue of being citizens, and they are already citizens by virtue of their birth in the United States. I’m not saying, by the way, that i necessarily find the use of historical precedent by the Supreme Court in _Minor v. Happersett_ very compelling. The fact that it has always been done this way does not mean, in my opinion, that it’s right. From a purely logical point of view, i think it would have been just as valid for the Supreme Court to say, in _Minor v. Happersett_, something like the following: The Enlightenment principle of consent of the governed, upon which the American revolution was launched, and upon which the nation was largely founded, means that citizenship only really has meaning if it involves participation in the electoral process. Voting is, or should be, one of the basic privileges of citizenship, and if some citizens have been denied the vote by various states before the present date, this reflects little more than historical confusion about the definition of a citizen and the privileges of citizenship, and historical inconsistency between the principles of the nation’s founding and the actions of its legislators. If women are citizens, as they clearly are under the 14th amendment, then their citizenship only has meaning if they can exercise it at the ballot box. Of course, a critic of my overall reasoning would argue that the Supreme Court has to show a certain deference to historical actions if it is not to become a mere social policy tool. And a critic of my argument connecting women, citizenship, and voting might immediately raise the same question that i asked you at the beginning of this post: what about minors? I would respond with some reasoning about how societies often differentiate between the childhood and adulthood for the purpose of certain rights and privileges. And then that person might say, “Well, if you can do it by age, then why not by sex?” And that brings us to the fact that societal opinions change over time. The judges in _Minor v. Happersett_ were the social products of their time, and in that sense their decision to defer to historical practice and to the _status quo_, like so many legal decisions, was almost as much a social decision as a legal one. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 29, 2017, 7:57pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/373 "2017-06-29T19:57:15Z")
> [@Really\_Not\_All\_That\_Bright](#): > > In **Minor** the Court found that voting is _not_ a privilege of citizenship. In some of the original 13 states the franchise was limited to landowners, free males, and so on. This is just bizarre to me since it says voting is a right in the 15th amendment: _ **The right of citizens of the United States to vote** shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude._ The list at the end is not exhaustive and we do circumscribe rights all the time but do so as minimally as possible. In the case above the amendment says you absolutely cannot restrict the right to vote on the basis of the items listed but it certainly is not an exhaustive list suggesting that any other reason is a-ok (e.g. men shorter than 5’6" and people with blond hair). Besides, it declares right at the beginning that voting is a right. Further, Article I, Section 2: _The House of Representatives shall be composed of Members chosen every second Year by the People of the several States…_ Yes we use electors but how do “the People” choose a representative if not by election? Further along in Article IV, Section 4: _The United States shall guarantee to every State in this Union a Republican Form of Government…_ We know what they meant by a “Republican form of government” because James Madison wrote about it in Federalist #39: > [@](#): > > we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it… > > \ > > It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people… > > SOURCE: [https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-39](https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-39) Indeed the whole notion is baked into the foundation of our government. Lincoln referenced it in his Gettysburg Address: \*[T]hat government of the people, by the people, for the people, shall not perish from the earth. [/quote] That does not have the power of law but clearly the notion that the people choose their government was viewed as a basic foundation of the United States and the means of that choosing is by voting. Seems to me the court didn’t want women voting so pulled a Scalia and pretzled the language and logic to get the desired result. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 29, 2017, 8:07pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/374 "2017-06-29T20:07:01Z")
> [@mhendo](#): > > But a three-year-old toddler is a citizen under the provisions of the 14th Amendment. Would you allow that citizen to vote? 🙂 > I agree with your assessment of the reasoning behind the 15th Amendment, but as a matter of logic, the Supreme Court’s argument about the 15th in _Minor v. Happersett_ has some merit, does it not? We put restrictions on all our rights. None are absolute. So setting a voting age is not amiss (and voting age appears in the 15th and 26th amendment). But no, I do not see the merit of _Minor v. Happersett_ (see my post just above). > [@](#): > > That is, if voting truly is a right of citizenship, and if all people born in the United States are citizens, then as a matter of law, you don’t need a separate amendment that protects citizens of a particular race from disenfranchisement. African Americans are already protected by virtue of being citizens, and they are already citizens by virtue of their birth in the United States. Yes you do. History shows the southern states systematically sought to pervert all sorts of laws meant to treat black people the same as white people. We got things like “separate but equal” among other injustices from that (e.g. anti miscegenation laws). Having an amendment that came right after a bitterly fought war to make them recognize the very people they sought to subjugate and own it is not unreasonable to set in stone as clearly as possible that they are not to disenfranchise them which of course they set about doing almost immediately anyway and still do to this day despite that sitting in the constitution. ---
**Author:** ![Whack-a-Mole](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/whack-a-mole/32/141_2.png) [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)\ **Post date:** [June 29, 2017, 8:21pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/375 "2017-06-29T20:21:06Z")
> [@Whack-a-Mole](#): > > (and voting age appears in the 15th and 26th amendment) Whoops… 14th and 26th amendment ---
**Author:** ![k9bfriender](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/k9bfriender/32/3283_2.png) [@k9bfriender](https://boards.straightdope.com/u/k9bfriender)\ **Post date:** [June 29, 2017, 8:22pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/376 "2017-06-29T20:22:22Z")
> [@Bricker](#): > > No, although an understandable error. > > He’s asking that the Colorado legislators be overridden on compelled speech grounds, claiming that the First Amendment’s freedom of speech clause applies to expressive conduct and includes the right not to be forced to engage in expressive conduct. Why would that not be an emanation or a penumbra? The first doesn’t say anything at all about expressive conduct, or whether congress could compel it. Sounds like some activist lawyers wearing robes made that law up to me. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 29, 2017, 8:41pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/377 "2017-06-29T20:41:09Z")
> [@Whack-a-Mole](#): > > We put restrictions on all our rights. None are absolute. So setting a voting age is not amiss (and voting age appears in the 15th and 26th amendment). Voting age appears in the 14th, not the 15th. And referring to the 26th is sort of pointless, considering it came decades after the 14th. But you are making my point for me. If rights aren’t absolute, and we can place restrictions on them, how do we decide what those restrictions are? Many people in the 19th century thought that there was “nothing amiss” about restricting voting by sex. I don’t agree with their assessment, but i’m not going to ignore it just because it find it uncongenial. If women are citizens, and children are citizens, and you believe that voting is a right of citizens, upon what grounds do you say that women _ **must** _ be allowed to vote, but children can be restricted? > [@Whack-a-Mole](#): > > But no, I do not see the merit of _Minor v. Happersett_ (see my post just above). The 14th Amendment uses the term “right” in this context too: > [@](#): > > But when **the right to vote** at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. The thing is, it seems to me that they’re talking here not necessarily about natural, pre-existing rights, nor about rights that are enumerated in the national Constitution. They are talking about certain rights that individual states grant to their citizens. So, each state had laws granting certain people the right to vote. The 15th Amendment said that you can’t deny or abridge that (state-granted) right based on race, color, or previous condition of servitude. That’s how i understand the term in that context. > [@Whack-a-Mole](#): > > Yes you do. History shows the southern states systematically sought to pervert all sorts of laws meant to treat black people the same as white people. We got things like “separate but equal” among other injustices from that (e.g. anti miscegenation laws). > > Having an amendment that came right after a bitterly fought war to make them recognize the very people they sought to subjugate and own it is not unreasonable to set in stone as clearly as possible that they are not to disenfranchise them which of course they set about doing almost immediately anyway and still do to this day despite that sitting in the constitution. But your argument here makes no sense. You are saying that the 15th was absolutely necessary in order to make the South recognize the need to treat blacks fairly. But you also note, correctly, that even with the 15th Amendment, there was STILL a long history of disenfranchisement, separate-but-equal, anti-miscegenation laws, violence, and all manner of racial discrimination and mistreatment. I’m in a rather uncomfortable position here, because i have absolutely no interest in arguing against the Reconstruction Amendments (13, 14, 15); i think they represented admirable efforts to protect and defend the civil rights of four million freed slaves, and of other blacks in the United States. I also have absolutely no interest in arguing against the idea of women getting the vote, and am happy to come from the first independent country in the world where women had the right to vote in a national election (Australia). But how the law works, and how we wish things worked, do not always coincide, and you seem to be having some trouble making that distinction. My point about _Minor v. Happersett_ was merely that, as a matter of pure logic (leaving out the messy historical details), if all people born in the United States were citizens, and if voting was a privilege of citizenship that could not be denied or abridged by the states, then the 15th Amendment would have been redundant, because the freed slaves and other African Americans—citizens by virtue of their birth—would have had legal remedy against efforts to disenfranchise them based on their voting rights as citizens. In fact, if the Supreme Court’s had decided, in _Minor v. Happersett_, that voting WAS a privilege of citizenship, i think that might have actually provided a better set of protections for black voting rights than the 15th Amendment. After the end of Reconstruction, many Southern states set about doing everything possible to disenfranchise the black population, through extralegal means such as violence and intimidation, but also through legal workarounds such as literacy tests and grandfather clauses. Because such workarounds were not explicitly based on race, it was difficult to challenge their constitutionality, and because black populations were often prevented by violence and intimidation from asserting their rights, we had a period of almost a century where very few Southern blacks even registered to vote. On the eve of WWII, only 3% of blacks in Southern states were registered, and in LA, AL, and MS that number was under 1%. Had the Court found in _Minor v. Happersett_ that voting WAS a privilege of citizenship, legal workarounds like literacy tests and grandfather clauses might have been far less effective, because if voting is something fully and constitutionally attached to citizenship, then you can’t formulate a test that would take away the right to vote without violating that basic constitutional principle. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 29, 2017, 8:48pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/378 "2017-06-29T20:48:17Z")
> [@k9bfriender](#): > > Why would that not be an emanation or a penumbra? The first doesn’t say anything at all about expressive conduct, or whether congress could compel it. > > Sounds like some activist lawyers wearing robes made that law up to me. But terms like “emanations” and “penumbras” only really entered the national legal lexicon, at least in the way you’re using them, in the 1960s. You can find evidence of the word “penumbra” in some legal writings from the late 19th century, but the word is not used in quite the same way as we understand it now. Had the Supreme Court already established the principle of Constitutional “emanations” and “penumbras,” the justices in _Minor v. Happersett_ might have been forced to consider more fully the implications of things not explicitly found in the text of the Constitution. But history doesn’t work that way; we can’t just turn the timeline around and apply it to the 1870s. I’ve already said that i think their decision reflected social as well as legal thinking, and i believe that’s true of many (most?) well-known Supreme Court decisions, but it’s a bit unfair to impose upon their decision a set of legal arguments that would not be articulated fully for another 80 or 90 years. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [June 29, 2017, 8:48pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/379 "2017-06-29T20:48:35Z")
> [@k9bfriender](#): > > Why would that not be an emanation or a penumbra? The first doesn’t say anything at all about expressive conduct, or whether congress could compel it. > > Sounds like some activist lawyers wearing robes made that law up to me. Yes, that’s true. (Well, half-true. The text says “freedom of speech,” and it’s accurate to say that this phrase means both the freedom TO speak and the freedom to avoid speaking; both are meanings that “of” can have in the phrase. But you’re right that ‘expressive context’ is an addition to ‘freedom of speech;’ it’s what made flag-burning protected conduct.) So yeah, I’d be fine with rolling that interpretation back, but not on an ad hoc basis. It’s the rule, or it isn’t the rule. I’ll take either one. ---
**Author:** ![mhendo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/mhendo/32/3159_2.png) [@mhendo](https://boards.straightdope.com/u/mhendo)\ **Post date:** [June 29, 2017, 9:05pm UTC](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792/380 "2017-06-29T21:05:06Z")
> [@mhendo](#): > > But terms like “emanations” and “penumbras” only really entered the national legal lexicon, at least in the way you’re using them, in the 1960s. > > You can find evidence of the word “penumbra” in some legal writings from the late 19th century, but the word is not used in quite the same way as we understand it now. Had the Supreme Court already established the principle of Constitutional “emanations” and “penumbras,” the justices in _Minor v. Happersett_ might have been forced to consider more fully the implications of things not explicitly found in the text of the Constitution. But history doesn’t work that way; we can’t just turn the timeline around and apply it to the 1870s. > > I’ve already said that i think their decision reflected social as well as legal thinking, and i believe that’s true of many (most?) well-known Supreme Court decisions, but it’s a bit unfair to impose upon their decision a set of legal arguments that would not be articulated fully for another 80 or 90 years. My apologies for this post, **k9bfriender**. I got confused and thought that you made your post as a part of the conversation i was having with **Whack-a-Mole**. Please disregard my argument. [Previous page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=18) [Next page](https://boards.straightdope.com/t/judge-orders-colorado-baker-to-serve-gay-couples/675792.md?page=20)