Your question’s nonsensical. You can’t interpret the Constitution without reference to caselaw. You’re asking a question that cannot be logically answered.
It’s not nonsensical at all; John Marshall managed to interpret the Constitution without significant prior case law to guide him for three decades. Hamlet is simply asking Bricker what he believes to be the correct interpretation of the law without reference to stare decisis, which is what a federal district judge would be bound by.
It’s far from nonsensical.
There is a theory of Constitutional interpretation that is as threadbare as the Emperor’s new clothes: Textualism.
Ardent textualists are fond of decrying “new” rights of privacy and other rights derived from Constitutional principles as being illegitimate because they lack textual foundation. Bricker is one of the more vocal and reflexive proponents of textual interpretations being correct, while all others are pure fancy and wrongly decided.
That they can do this while conceding the pragmatic reality caselaw is not at issue. However, relying on it for their own arguments for what *should/should not * be Constitutional severely undercuts their arguments that textualism is a solid/complete theory, and severely undercuts their arguments against finding other penumbratic rights within the Constitution.
Why?
What if you were a judge with the hypothetical case before you on July 10, 1868 (the day after the 14th amendment was adopted)?
There always has to be a first case for the rest to cite as precedent. As such one could reasonably ask how someone else would decide absent precedent.
Nevermind.
Of course.
If I had to tackle this question as a federal judge in 1869, I’d need to know more of how the law sought to accomplish this “ban.”
Absurd.
I’m perfectly prepared to address what was Constitutional or not on January 1, 1869. Give me the text of the law in question.
Of course. But to answer this, it’s no longer enough to simply say that the forbids gay people from “spawning.” What does that mean, specifically? In the very first response in this thread, I asked if judo would be used to stop them. So you tell me what the law says, I’ll tell you if it’s Constitutional on January 1, 1869.
That’s a family thing: We always refer to our relatives as the _______, the ___________. I’m"my ________, the theatre freak." I don’t know who started it, but it’s a family mindset.
When my sister the lesbian visited my office, we were in the break room and she was catching me up on all the relatives. A co-worker walked by and then walked back and was standing there just listening. I finally said “Yes?” and he asked “Does anyone in your family use their names?”
My sister also uses he word “spawn” to mean “gay reproduction.”
I am not going to pen a law in proper legalese for this thread but I presume the law would either criminalize gay people who spawn or, more likely, have the state take away the spawn of gay couples.
You are right there is no reasonable way to actually stop a gay man providing his semen to a woman for her to conceive.
Criminal sanctions would seem too draconian.
So, I suspect the law would actually be one that forbids a gay couple from parenting. Basically a child could not be raised in a household where the couple was the same sex.
Child is put up for adoption or sent to an orphanage.
Under such a law, presumably, no (or very few) homosexual couples would bother having children.
Good Ol’ Bricker.
Good Ol’ rules in the Great Debates forum.
How about this? The State of Pedantic in the USA (subject to the US Constitution) has an entire system set up to deal with adoptions, foster children, and parental rights/responsibilities that everyone agrees meet the requirements of “procedural due process”. In that vast repository of statutory law, the legislature includes this phrase: "“[n]o person otherwise eligible to adopt, become a foster parent, or enjoy parental rights under this statute may adopt, become a foster parent, or enjoy parental rights if that person is found by a preponderence of the evidence to be a homosexual”.
Good enough? Or must I provide you with the entire code of Pedantic? Also, I think we can set aside any federalism/incorporation issues for the purposes of this hypothetical.
Let’s take Hamlet’s example.
And let’s agree that we’re in 1869, with the ink still wet on the brand-new Fourteenth Amendment.
And let’s say we must consider three cases: an aggrieved same-sex couple that wishes to adopt, and his been denied by the Pedantic State Adoption Agency; a homosexual person who wishes to become a foster parent but has been denied by the Pedantic State Child Welfare Agency; and a lesbian couple raising a child that is the biological issue of one of them, where the child has been taken away by the Pedantic State Child Welfare Agency.
Does that suit everyone?
Sounds good. But please use the current state of research/information about homosexual parents rather than confining yourself to the state of belief in the 1860’s.
Since the OP is asking about spawning, I would add:
A married male and female couple visits their OBGYN. The doctor informs the couple that the wife is pregnant with the male’s child. The doctor also informs the couple that because the doctor has knowledge that one of them actively and regularly engages in homosexual acts, the doctor must report these proclivities to the relevant authorities and that upon delivery the infant will be removed from the delivery room and shunted off to an orphanarium or other suitable foster care facility. The couple does not intend to divorce. The couple does not deny the homosexual acts took place in the past or will take place in the future. The couple is in an otherwise stable relationship and there are no other faults sufficient to remove the child.
Gay people are allowed to spoon, so why not spawn? It’s only a difference of two letters.
You know what else is only a difference of two letters? Gays and HITLER.
Sounds good. But please use the current state of research/information about homosexual parents rather than confining yourself to the state of belief in the 1860’s.
[/QUOTE]
You’re asking me to apply the law of 1859 to the facts as they’re known today. I’m happy to do that, but I want the distinction made clear.
Our federal constitution creates a federal government that is supreme in its bailiwick, but has only limited, enumerated powers. The plenary power in government belongs to each state. The Constitution is the supreme law of the land.
The Fourteenth Amendment offers sweeping language with respect to constraints against the plenary power of the state. In particular, it provides that states may not abridge the privileges or immunities of citizens; deprive any person of life, liberty, or property, without due process of law; or deny to any person within its jurisdiction the equal protection of the laws.
The language of the Constitution must control our results, but that language cannot be interpreted to lead to an absurd conclusion, or to effect a nullity. The language of the amendment, read as it is, essentially strips away the distinct sovereignty of the states and places in the purview of the federal government every law. This was not the understanding of those who ratified it; it is an absurd result.
Read literally, no state could make any law affecting any two classes of persons unequally, lest one class complain that they were being denied the equal protection of the law. A child forbidden to vote because of age is clearly “a person” within the state’s jurisdiction. No one imagines that the Fourteenth Amendment is intended to remove the state’s ability to curtail that child’s ability to vote. Yet by the plain words, a statute forbidding the child to vote treats that child unequally, and denies him the “equal protection” of the law.
Yet at the same time, the amendment cannot be a nullity; it must offer some significant protections that did not, heretofore, exist.
*Before we proceed to examine more critically the provisions of this amendment, on which the plaintiffs in error rely, let us complete and dismiss the history of the recent amendments, as that history relates to the general purpose which pervades them all. A few years’ experience satisfied the thoughtful men who had been the authors of the other two amendments that, notwithstanding the restraints of those articles on the States, and the laws passed under the additional powers granted to Congress, these were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon. They were in all those States denied the right of suffrage. The laws were administered by the white man alone. It was urged that a race of men distinctively marked as was the negro, living in the midst of another and dominant race, could never be fully secured in their person and their property without the right of suffrage.
Hence the fifteenth amendment, which declares that ‘the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.’ The negro having, by the fourteenth amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.
We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all; and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, [83 U.S. 36, 72] mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.
We do not say that no one else but the engro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican or Chinese race within our territory, this amendment may safely be trusted to make it void. And so if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood is, that in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished, as far as constitutional law can accomplish it. *
Accordingly, the strongest protections from this amendment apply when a racial classification is created by the state. This type of classification does not, however, apply in the instant case.
(to be continued)
Note: the italicized section is lifted from the Slaughter-house Cases, not as “precedent,” but as adopted “original” reasoning. I provide this citation to avoid plaigarizing.
Our example of the child voter is instructive. The observer instinctively knows that such a ban is permissible, even though it flouts the plain guarantee of “equal protection.” We may not, however, concede to the judiciary the power to “instinctively” weigh prohibitions and decide their constitutionality thereby. In our system of government, we expect that substantive governmental policy is created and promulgated by the electorate, acting through its elected representatives.
Why then is it permissible to ban the child voter? Because the government is advancing a legitimate interest of government, supporting a legitimate goal of government, and has done so by offering up a regulation that is rationally related to that goal.
The holding today, then, in weighing each of the cases here must proceed through that same sieve: is the government (a) advancing a legitimate interest; (b) supporting a legitimate goal; and (b) offering up a regulation that is rationally related to that goal?
This analysis will give effect to the equal protection clause, not absurdly aggrandizing it to the point it subsumes all state sovereignty nor nullifying it to meaninglessness.
(to be continued)
Because we give great deference to laws passed by our elected representatives, and because those laws enjoy the strong presumption of constitutionality, the legitimate government interest is likewise presumed to exist, and this presumption is rebutted only if the reviewing court cannot conceive of any possible qualifying interest and goal.
The process described herein is not of constitutional dimension, but rather of the inherent rule-making power of the federal courts (absent Congressional change).
Having established the process, we now turn to the facts at hand.
It is well-established that opposite sex couples do not enjoy any particular measurable advantage over same-sex couples for the purpose of providing a stable household. The state has a legitimate interest in encouraging procreation, of course, but that interest is not implicated here, where the procreation has already occurred and the only question left is the placement of the child. The state has not advanced**, and I am not aware, of any legitimate interest or goal that is related to limiting only opposite-sex couples to adopt, foster, or care for a child.
Therefore, each regulation identified by Pedantic fails to satisfy the Equal Protection Clause of the Fourteenth Amendment.
** If someone wants to advance a goal I haven’t thought of, of course, that might change this sentence and the result.
Rebuttal notes:
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The state has a legitimate interest in prohibiting the dissemination of obscenity. Obscenity is defined by local customs and mores. The state, through its electoral process, has deemed homosexual conduct to be per se obscene. The state has also determined that allowing a known homosexual couple to raise a child is an affront to traditional concepts of marriage and further promotes homosexuality—it is also per se obscene.
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The plain text of 14th Amendment “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.” contains no provision for slicing up the population into protected classes.
The child voting example does not hold. First, the Federal Constitution does not control a states’ internal voting rules. If the Federal law grants suffrage to a certain group, than state laws to the contrary would be in violation of the Constitution. However, if Federal law restricts voting to certain groups, and state laws do not go further, there is no violation of the 14th Amendment.
- The Federal Constitution contains no reference to the right to raise a child. The law in question is a state law. Though the law may violate the state’s constitution, there are no *Federal *Constitutional grounds for attacking the law.