# Our New Constitutional Amendment **URL:** \ **Category:** Great Debates\ **Created:** [February 24, 2004, 4:23pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916 "2004-02-24T16:23:10Z")\ **Posts on this page:** 20\ **Page:** 6
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 25, 2004, 3:44pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/101 "2004-02-25T15:44:52Z")
> [@Wrenchslinger](#): > > To bastardize my driver’s ed teacher: > This amendment is DOA the minute it hits the floor of the senate. There is no way it could get the required majority. I bet Bush won’t say another word publically about the matter unless forced to address it in a press conference setting. And yet the Defense of Marriage Act, which placed into federal law much of what this amendment would place into the Constitution, passed the Senate 85-14. By the way: in response to an inquiry of mine, both of my state’s senators have indicated they would support this amendment. - Rick ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 25, 2004, 3:49pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/102 "2004-02-25T15:49:10Z")
> [@Blalron](#): > > Bricker’s conclusion that the 14th amendment was meant only meant to protect black people is unsupported by either the very text of the amendment itself, or by any evidence whatsoever. Only if you ignore the legislative and historical record surrounding the 14th amendment. It’s easy to say something is “unsupported by evidence” if you conveniently refrain from looking at _actual fucking evidence_. > [@elucidator](#): > > Going after “intent” is chasing chimera. The law is worded as it is worded, we have little choice. The law, as written, is inclusive. As a born-again strict constructionist (I done seen the light, Dewey! Praise Scalia, I done seen the light!). The states may not deny any citizen equal protection of the law. Gays are citizens. The problem with that approach is that the equal protection clause, read with total literality, would essentially be the end of law as we know it. Almost all law depends on classification of people and disparate treatment based on those classifications – children are subject to greater restrictions than adults; the rich are taxed differently than the poor; and so on. In such a situation, principled interpretation of the text demands an understanding of how the text was understood by those drafting the amendment – in short, textualism contains a kernel of originalism. FTR, I oppose the amendment on federalism grounds, and think it one of the stupider things to come out of the current administration. While I might support an amendment that guarantees each state can define marriage as it sees fit (including declining to recognize other state’s deviations from their own definition), I see no reason to federalize any particular definition of same. ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [February 25, 2004, 4:06pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/103 "2004-02-25T16:06:56Z")
Lacking **Dewey’s** jurisprudential sophistication, I oppose the amendment for the mundane and simplistic reason that its just flat _wrong._ Or, as Learned Hand once remarked, “Fuck _this_ shit!” ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [February 25, 2004, 4:11pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/104 "2004-02-25T16:11:25Z")
> [@Dewey Cheatem Undhow](#): > > In such a situation, principled interpretation of the text demands an understanding of how the text was understood by those drafting the amendment – in short, textualism contains a kernel of originalism. Isn’t it possible that, in realizing the mistakes that had been made in the past, the authors of the amendment worded it precisely to include all citizens of the United States, not just the black citizens? Otherwise, you could say that Asian and Hispanic folks aren’t covered under the amendment either. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 25, 2004, 4:15pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/105 "2004-02-25T16:15:25Z")
> [@Kalhoun](#): > > Isn’t it possible that, in realizing the mistakes that had been made in the past, the authors of the amendment worded it precisely to include all citizens of the United States, not just the black citizens? Otherwise, you could say that Asian and Hispanic folks aren’t covered under the amendment either. If your theory is correct, why did women need another constitutional amendment guaranteeing them the right to vote? Why didn’t women’s suffrage come into being upon the passage of the Fourteenth Amendment? ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 25, 2004, 4:27pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/106 "2004-02-25T16:27:09Z")
> [@Dewey Cheatem Undhow](#): > > The problem with that approach is that the equal protection clause, read with total literality, would essentially be the end of law as we know it. Big ol’ pile of stinking sophistic, strawman crap. Everyone here, including you, knows about the three-tiered approach to Equal Protection Analysis. No one is advocating anarchy. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 25, 2004, 4:34pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/107 "2004-02-25T16:34:16Z")
It should have **Bricker**. The 19th Amendment was apparently needed to overcome the misogyny of the time. In fact, I’d say that the 15th is really redundant of rights guaranteed by the 14th. It’s a shame that privledged white men have been so pugnacious in the past that the 15th, 19th and 24th had to be passed to ensure those rights which should have been evident. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 25, 2004, 4:38pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/108 "2004-02-25T16:38:40Z")
> [@Homebrew](#): > > Everyone here, including you, knows about the three-tiered approach to Equal Protection Analysis. I don’t – could you explain? Daniel ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 25, 2004, 4:49pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/109 "2004-02-25T16:49:26Z")
[The Three-Tierd Approach at a glance](http://www4.gvsu.edu/richardm/PLS307/EQUAL%20PROTECTION%20CLAUSE.htm) Basically the courts have developed different levels of scrutiny for legislation based on what the law’s purpose and effects are. > [@](#): > > IV. Evolution to three-tiered approach to equal protection analysis > > A. **Rational basis test** > > 1. Applies to regulation of business, economic regulation, and any regulation which is not reviewed according to the intermediate scrutiny or strict scrutiny standards of review. Some other examples include regulations of homosexuality, indigency, age, and alienage when the discrimination against aliens serves an important public function. > > 2. The challenged regulation must be reasonably related to a legitimate state purpose. > > 3. The Court almost never strikes down regulations when it applies this standard, with the exception of two economic cases since 1937. > > 4. Usually, the Court upholds the challenged law, as it did in Nordlinger v. Hahn, 505 U.S. 1, 1992. California voters approved Proposition 13, which rolled back assessments on properties purchased before 1978 to 1975 levels, and properties purchased after that date were assessed based on their selling price. Justice Blackmun explained that “In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” He noted that the state had legitimate interests in neighborhood preservation, continuity and stability, and protecting the existing owners’ reliance interests in stable tax rates. > > 5. Does the rational basis test still have some teeth? > > Two decisions indicate that sometimes the Court will apply the rational basis test, yet strike down the challenged regulations. > > In City of Cleburne Texas v. Cleburne Living Center, 473 U.S. 432 (1985), the Court declared that the City’s ordinance which required a permit for the construction of hospitals for the insane or feeble-minded was unconstitutional because it failed to pass the rational basis test. > > In Romer v. Evans, 116 S.Ct. 1620 (1996), the Court held that a Colorado state constitutional amendment that forbids localities from enacting ordinances outlawing discrimination against homosexuals violates the equal protection clause of the 14th Amendment. Justice Kennedy reasoned that the amendment could not even pass the rational basis test, because there was no legitimate government interest. The only interest was discrimination against gays and lesbians, and that is not a legitimate interest. > > B. **Intermediate scrutiny** > > 1. The intermediate standard of review applies mainly to gender cases. This standard is called intermediate scrutiny, exacting scrutiny and strict rationality. > > 2. The government must show that the challenged classification serves important governmental objectives and that the discriminatory means “employed” are “substantially related to the achievement of those objectives.” Also, the state’s justification must be “exceedingly persuasive.” See U.S. v. Virginia, 116 S. Ct. 2264 (1996), in which the Court declared that the Virginia Military Institute’s exclusion of women violated the equal protection clause. > > C. **Strict scrutiny** > > 1. The strict scrutiny standard applies to racial classifications, including affirmative action programs. (The standard also applies to fundamental rights.) > > 2. The legislation must be narrowly tailored to achieve a compelling government interest. > > 3. See City of Richmond v. J.A. Croson, 488 U.S. 469 (1989), in which the Court struck down the Richmond, VA minority set aside program as an violation of the equal protection clause and the strict scrutiny standard. ---
**Author:** ![Wrenchslinger](https://avatars.discourse-cdn.com/v4/letter/w/94ad74/32.png) [@Wrenchslinger](https://boards.straightdope.com/u/Wrenchslinger)\ **Post date:** [February 25, 2004, 4:51pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/110 "2004-02-25T16:51:05Z")
> [@Bricker](#): > > And yet the Defense of Marriage Act, which placed into federal law much of what this amendment would place into the Constitution, passed the Senate 85-14. > > By the way: in response to an inquiry of mine, both of my state’s senators have indicated they would support this amendment. > > - Rick But DOMA was, to a certain extent, a method of trying to deal with this question without going to the rather drastic measure of proposing a new amendment. I’d bet that a good number of those 85 would be more hesitant to pass this legislation. ---
**Author:** ![Left\_Hand\_of\_Dorkness](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/left_hand_of_dorkness/32/7156_2.png) [@Left\_Hand\_of\_Dorkness](https://boards.straightdope.com/u/Left_Hand_of_Dorkness)\ **Post date:** [February 25, 2004, 4:54pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/111 "2004-02-25T16:54:54Z")
Thanks, **Homebrew**! Daniel ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 25, 2004, 4:55pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/112 "2004-02-25T16:55:26Z")
> [@Homebrew](#): > > It should have **Bricker**. The 19th Amendment was apparently needed to overcome the misogyny of the time. In fact, I’d say that the 15th is really redundant of rights guaranteed by the 14th. It’s a shame that privledged white men have been so pugnacious in the past that the 15th, 19th and 24th had to be passed to ensure those rights which should have been evident. You say it should have. But since it didn’t, why do you still cling to the notion that your view is the correct one? In other words, the evidence that your view of the Fourteenth’s reach is incorrect is found in the need for the Nineteenth - if you were right, the Nineteenth would have been superfluous. Since it clearly wasn’t, why don’t you take this as evidence your view is wrong? - Rick ---
**Author:** ![schplebordnik](https://avatars.discourse-cdn.com/v4/letter/s/91b2a8/32.png) [@schplebordnik](https://boards.straightdope.com/u/schplebordnik)\ **Post date:** [February 25, 2004, 4:55pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/113 "2004-02-25T16:55:47Z")
> [@Homebrew](#): > > [The Three-Tierd Approach at a glance](http://www4.gvsu.edu/richardm/PLS307/EQUAL%20PROTECTION%20CLAUSE.htm) > Basically the courts have developed different levels of scrutiny for legislation based on what the law’s purpose and effects are. So what standard applies to gay marriage? Marriage is a fundamental right, but all the cases relate to man v. woman marriage. I can’t imagine gay marriage bans surviving strict scrutiny. Intermediate scrutiny maybe, if you can convince 5 justices of the “man+woman limitation preserves family values” or something like that. But even in that argument seems iffy in view of Lawrence. I can’t recall if Lawrence addressed the standard of review for “orientation-based” discrimination or not. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 25, 2004, 5:05pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/114 "2004-02-25T17:05:47Z")
> [@Kalhoun](#): > > Isn’t it possible that, in realizing the mistakes that had been made in the past, the authors of the amendment worded it precisely to include all citizens of the United States, not just the black citizens? Otherwise, you could say that Asian and Hispanic folks aren’t covered under the amendment either. I think the most plausible interpretation of the historical record indicates that the fourteenth amendment was designed to deal with racial distinctions, so Asians and Hispanics most certainly would be covered. > [@Homebrew](#): > > Big ol’ pile of stinking sophistic, strawman crap. > > Everyone here, including you, knows about the three-tiered approach to Equal Protection Analysis. No one is advocating anarchy. That middle tier is a relatively recent invention, one I’m willing to accept on _stare decisis_ grounds, but one which I don’t think was correct when originally created. So we’re left with strict scrutiny (for race and national origin) and rational basis (for everything else). And rational basis is a test that is by design nearly impossible to fail, for _precisely_ the reason I outlined above – equal protection, read with hyperliteralness, would effectively end law as we know it. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 25, 2004, 5:08pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/115 "2004-02-25T17:08:27Z")
> [@schplebordnik](#): > > I can’t recall if Lawrence addressed the standard of review for “orientation-based” discrimination or not. _Lawrence_ was decided on “substantive” due process grounds, not on equal protection. Only Justice O’Conner would have relied on equal protection in striking down the Texas law, using a “more searching form of rational basis” (whatever the hell that means). ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 25, 2004, 5:13pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/116 "2004-02-25T17:13:53Z")
> [@Bricker](#): > > If your theory is correct, why did women need another constitutional amendment guaranteeing them the right to vote? Why didn’t women’s suffrage come into being upon the passage of the Fourteenth Amendment? Just to be a nitpicky pedant: the existence of the Fifteenth Amendment (and its passage by Congress a scant nine months from the ratification of the Fourteenth) would appear to indicate that the Fourteenth Amendment simply does not deal with voting rights, and that thus women’s suffrage was not covered by the Fourteenth Amendment in any event. Not that I expect **Homebrew** to buy into that explanation, as it would mean that the right to vote could hypothetically be denied based on sexual orientation. ---
**Author:** ![Kalhoun](https://avatars.discourse-cdn.com/v4/letter/k/3bc359/32.png) [@Kalhoun](https://boards.straightdope.com/u/Kalhoun)\ **Post date:** [February 25, 2004, 5:14pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/117 "2004-02-25T17:14:08Z")
> [@Bricker](#): > > If your theory is correct, why did women need another constitutional amendment guaranteeing them the right to vote? Why didn’t women’s suffrage come into being upon the passage of the Fourteenth Amendment? Maybe they didn’t need another amendment. Maybe they just needed fresh interpretation of the existing amendment. Just as they do now. ---
**Author:** ![Homebrew](https://avatars.discourse-cdn.com/v4/letter/h/c89c15/32.png) [@Homebrew](https://boards.straightdope.com/u/Homebrew)\ **Post date:** [February 25, 2004, 6:00pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/118 "2004-02-25T18:00:18Z")
> [@Dewey Cheatem Undhow](#): > > _Lawrence_ was decided on “substantive” due process grounds, not on equal protection. Only Justice O’Conner would have relied on equal protection in striking down the Texas law, using a “more searching form of rational basis” (whatever the hell that means). This ignores the fact that the Court _did_ consider Equal Protection in it’s decision. > [@](#): > > Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. Clearly he is stating the Court’s opinion that it could have found Texas’ sodomy laws unconstitutional on an Equal Protection basis, but that was not enough. Equal Protection was served by finding for Due Process also. Reread my post, **Bricker**. I explained why. ---
**Author:** ![Dewey\_Cheatem\_Undhow](https://avatars.discourse-cdn.com/v4/letter/d/13edae/32.png) [@Dewey\_Cheatem\_Undhow](https://boards.straightdope.com/u/Dewey_Cheatem_Undhow)\ **Post date:** [February 25, 2004, 6:17pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/119 "2004-02-25T18:17:24Z")
> [@Homebrew](#): > > This ignores the fact that the Court _did_ consider Equal Protection in it’s decision. > Clearly he is stating the Court’s opinion that it could have found Texas’ sodomy laws unconstitutional on an Equal Protection basis, but that was not enough. Equal Protection was served by finding for Due Process also. _sigh_ Here we go again. :rolleyes: Saying that the court _might_ have decided the case on equal protection grounds is not the same as actually deciding on equal protection grounds. Indeed, note what Justice Kennedy writes in \*[Lawrence\*](http://laws.findlaw.com/us/000/02-102.html): > [@](#): > > As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. That language _explicitly disclaims_ the notion that the court is making a ruling based on equal protection. Kennedy is saying “we aren’t going to rely on equal protection because we’ve got an alternative available that accomplishes more.” You can _speculate_ that, absent “substantive” due process, the court _would_ have made its ruling on equal protection grounds. But you can’t say that the ruling was actually based on equal protection. Because it wasn’t; they explicitly said it was not. ---
**Author:** ![James\_Madison](https://avatars.discourse-cdn.com/v4/letter/j/96bed5/32.png) [@James\_Madison](https://boards.straightdope.com/u/James_Madison)\ **Post date:** [February 25, 2004, 6:59pm UTC](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916/120 "2004-02-25T18:59:21Z")
> [@](#): > > So what standard applies to gay marriage? Marriage is a fundamental right, but all the cases relate to man v. woman marriage. I can’t imagine gay marriage bans surviving strict scrutiny. Intermediate scrutiny maybe, if you can convince 5 justices of the “man+woman limitation preserves family values” or something like that. But even in that argument seems iffy in view of Lawrence. **schplebordnik** I think you are confused. As Dewey very aptly pointed out, there is not a “fundamental” rights analysis under the Equal Protection Clause. Equal protection clause, as the name should indicate, is in regards to treating classes of people or individuals “equally” under the law. Second of all, as Dewey also stated, the majority opinion in Lawrence v. Texas was rooted in the concept of “liberty” in the Due Process clause of the Fourteenth Amendment. The Due Process clause of the Fourteenth Amendment has the “fundamental” right analysis. Homebrew, I think Dewey has sufficiently burst your bubble. The holding of Lawrence v. Texas was not based on the Equal Protection Clause. Furthermore, I do not at all think Kennedy is saying what you attribute to him. \*Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. \* To which you interpret to mean: > [@](#): > > Clearly he is stating the Court’s opinion that it could have found Texas’ sodomy laws unconstitutional on an Equal Protection basis, but that was not enough. Kennedy is stating a decision based on one or the other advances the interest of the other. In other words, deciding this case unde the Due Process clause advances the same interests to be achieved under the Equal Protection Clause. Kennedy is admitting the Equal Protection would be sufficient to advance the interests. However, it was not “enough” to remove the stigma and as a result, they Court relied upon the Due Process clause. The holding of the case was hinged upon the Due Process clause. [Previous page](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916.md?page=5) [Next page](https://boards.straightdope.com/t/our-new-constitutional-amendment/230916.md?page=7)