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.
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.
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.
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!”
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?
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.
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.
I don’t – could you explain?
Daniel
The Three-Tierd Approach at a glance
Basically the courts have developed different levels of scrutiny for legislation based on what the law’s purpose and effects are.
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.
Thanks, Homebrew!
Daniel
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?
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.
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.
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.
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).
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.
Maybe they didn’t need another amendment. Maybe they just needed fresh interpretation of the existing amendment. Just as they do now.
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.
Reread my post, Bricker. I explained why.
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*:
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.
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:
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.