Not to the best of my knowledge.
It’s my understanding that constitutionality tests definitively occur only at the Supreme Court level (although this in not true of constitutionality discussions :D).
There have been a few CA initiatives that the courts have blocked, although not usually on constitutional grounds. Some have violated provisions of the regulations on initiatives themselves. (e.g., one was passed, some years ago, saying that initiatives had to be limited to a single topic, and you couldn’t propose an “omnibus” one.)
Just a big ol’ game of Nomic, really…
How did it? The authors of the amendment never intended it. Sodomy itself, let alone gay marriage, was illegal for thousands of years. I fail to see any way of integrating a right to SSM in the 14th amendment without a drastic rewrite of it.
The authors of the 14th amendment also never intended it to cover women, yet courts have interpreted it to.
“No State shall …deny to any person within its jurisdiction the equal protection of the laws.”
I see *no *exceptions to “any person” there. Or to “equal”.
Even the motto over the entrance to the Supreme Court building has no footnotes.
Just to be clear, I’m more or less thinking out loud here. I’m not totally convinced of my own argument, but I’m putting it out there for critique. It seems to me that if you accept the idea of “suspect classes”, that science must be part of what informs us of what those classes are, no? I mean, we don’t vote on such classes, they are decided by the courts.
Perhaps one might argue that we should vote on such classes per the amendment process.
I think my views on the courts and amendments is very similar to yours, but I, of course, lack the legal knowledge to fully understand the implications.
You seem to be denying the role the Supreme Court has in clarifying the details of the law. If the Supreme Court ruled that classifications based on sexual orientation automatically trigger strict scrutiny, you don’t think that would change the application of the Constitution with regard to the rights of gays and lesbians? Such a change would go against past precedent, but there’s nothing in the Constitution itself that says sexual orientation shouldn’t trigger strict scrutiny. Or would you do away with the whole notion of suspect classifications altogether, because it isn’t mentioned verbatim in the 14th Amendment?
The point is, the Constitution is inherently vague, which is why we have a Supreme Court to clarify it. There’s no way you can definitively say what the 14th Amendment does or doesn’t say about same sex marriage without taking judicial interpretation into account.
The doctrine of stare decisis. But if it is wrong, the members of the Court are entitled to revisit any issue when 4 decide to take up a case. Now when a president or series of presidents only appoints judges or justices based on which side they come down on this issue, that skews the judicial system. The almost universally accepted way to overturn the USSC opinions is to amend the Constitution, which is almost impossible.
Roberts is on record as supporting stare decisis when it comes to Roe v. Wade. He upheld restrictions on late term abortions, but Roe v. Wade certainly contemplates such restrictions.
Do you see any exceptions to free speech or to freedom of the press?
But I do have to admit that I am fascinated by your born-again textualist frame of reference! 
I agree with the first sentence. Not with the second.
“Democracy is the worst form of government, except for all the others.”
The right to marriage did not encompass miscegenation in 1866. Now it does. In between, people figured out that black folks weren’t subhumans who would pollute the white race with their demon seed, but human beings. Science.
Nothing, other than stare decisis and the fact that this majority doesn’t currently exist. I am on record holding that Roe v. Wade was wrongly decided (though I’m very glad it was).
You know better than that. There are other rights in the Constitution too (fascinating document, you ought to read it sometime) that sometimes come into conflict with the First. What other rights conflict with equal protection in this case?
More shallow cleverness from someone with the mistaken feeling of having an actual argument to present.
Had I been a USSC Justice, which I am not and never will be, I would have decided on 9th Amendment grounds and not reached privacy under the 4th Amendment penumbras. If we didn’t have a 9th Amendment, yeah, then I could see the 4th strongly implying privacy to the point that it is there. A reading of the Federalist and Anti-Federalist materials during the ratification debate make it clear that the Constitution wasn’t intended to be restrictive on rights, and the Bill of Rights, including the 9th Amendment makes it clear that people retain all the rights of free peoples. That includes not having moral scolds up in your cooch. That is a religious or personal moral matter.
The authors intended the amendment require equal treatment under the law, except where there is reason for unequal treatment. They would have thought there was plenty of reason to deny marriage to gays (had someone posed the question, of course, since they would never have contemplated it.) Turns out they were factually wrong about those reasons, so the equality thing does apply after all.
Then Baker v Nelson should control.
Such as…?
I was visitng the State House in Boston the other day, and in the bookstore they had a pamphlet, explaining how an ordinary citizen can write bills to be voted on in our state legislature.
And just to be clear, the EPC is not absolute. Witness, the denial of certain rights to felons, not to mention the elaborate judicial edifice of varying levels of scrutiny against which to apply the equal protection clause. You are aware of Strict Scrutiny, Intermediate Scrutiny and Rational Basis, no?
So, no, there is not an absolute right to equal protection, without any mitigating factors.
Nor has the SCOTUS recognized an unfettered right to free speech, despite there being no textual basis for this in the constitution itself.
Today was the final arguments for the lawyers to clarify their clients positions but more importantly, it’s a chance for the lawyers to address any lingering issues the Justices have.
“Takes no position” means just that. The Supremes aren’t deciding if gay couples are or are not good parents. That is not one of the legal questions before the court. Jurisdiction is and so is the “will of the people” (States Rights and voter referendums).
The Justices have already read the original case, the appeals, the amicus briefs, their own research on past and pertinent cases, of course, and have discussed the case amongst themselves. If the history of past questioning is any indicator, they’ve proven that a Justice doesn’t not necessarily vote on an issue based on the questions they asked in court. Todays questions were an effort by the Supremes to help end any lingering doubts they may have.
Are the questions exactly the same as required for a summary judgment?
Also you are ignoring newer rulings which greatly weaken Baker v Nelson, e.g. Lawrence v. Texas which directly weaken the summary judgement of Baker v Nelson.
You are also overstating the validity of a summary judgement, “The appeal is dismissed for want of a substantial federal question.”
But when Baker v Nelson was heard it was not full understood if sexuality was mutable. Now I know they didn’t really spend too much on that, but by K’s question you can tell HE was thinking about if that would result in heightened scrutiny.
I have no idea where this case is going but to flat out and say Baker v Nelson should be the law of the land is not as clear cut as you pressented it.