# The Constitutional Argument Against SSM that the lawyers are missing. **URL:** \ **Category:** Great Debates\ **Created:** [September 6, 2014, 7:07am UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644 "2014-09-06T07:07:00Z")\ **Posts on this page:** 16\ **Page:** 3
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 7, 2014, 5:08pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/41 "2014-09-07T17:08:05Z")
> [@The\_Other\_Waldo\_Pepper](#): > > We’ve established it for “sex”, which suffices. If you can write a law that makes no reference to race or sex – banning rooster fights, say – that’s irrelevant; lock up the lawbreakers and denigrate away. If you need to reference race or sex when allowing some folks to do what others can’t, apply strict or intermediate scrutiny. That interpretation cannot be accurate since the very amendment that you are using for support of that interpretation _uses sex as a qualifier_. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [September 7, 2014, 5:11pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/42 "2014-09-07T17:11:33Z")
> [@jtgain](#): > > That interpretation cannot be accurate since the very amendment that you are using for support of that interpretation _uses sex as a qualifier_. The very guy who wrote that all men are created equal, and specified that he meant it in regard to being endowed with inalienable rights to life and liberty and the pursuit of happiness, _owned slaves_. That he didn’t feel like living up to his words is no reason for me not to take those words (a) seriously, and (b) literally. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 7, 2014, 6:48pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/43 "2014-09-07T18:48:14Z")
> [@The\_Other\_Waldo\_Pepper](#): > > The very guy who wrote that all men are created equal, and specified that he meant it in regard to being endowed with inalienable rights to life and liberty and the pursuit of happiness, _owned slaves_. That he didn’t feel like living up to his words is no reason for me not to take those words (a) seriously, and (b) literally. So you just pick out the words that you like and pretend that they control with no reference to the others? Sounds pretty results-oriented to me. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [September 7, 2014, 6:56pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/44 "2014-09-07T18:56:22Z")
> [@jtgain](#): > > Until we establish that sexual orientation is on par with race, we cannot use the term “bigotry” unless we use that term to invalidate each and every law on the books. It took 100 years of “equal protection” before we actually recognized that we shouldn’t pass laws specifically designed to be unequal, and you call that “putting race on a pedestal”. I’d call it finally seeing something that had been obscured by bigotry. > [@](#): > > So why should we put sexual orientation on that pedestal? Why shouldn’t we? Is there some reason that homosexuals don’t deserve equal protection? They’re not actually breaking any laws by being homosexual, just like blacks before the Civil Rights movement weren’t breaking the law by being black. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [September 7, 2014, 7:16pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/45 "2014-09-07T19:16:47Z")
> [@jtgain](#): > > So you just pick out the words that you like and pretend that they control with no reference to the others? Sounds pretty results-oriented to me. Better to say that I – and the courts, of course – pick out those words, and apply them in a Strict Scrutiny framework if folks are being denied something because of their race; or an Intermediate Scrutiny framework, if they’re being denied something because of their sex; or a more forgiving Rational Basis framework, if they’re being denied something because of, f’rinstance, their age. And that I – and, again, the courts – leave the remaining words intact and in force. If you tell a citizen that she can’t vote or marry someone or whatever solely because she’s the wrong race – _if you were the right race, you could; but you’re not, so you can’t_ – I’ll prepare to apply strict scrutiny to whatever reasoning you advance. If I hear you tell a citizen that she can’t vote or marry someone or whatever solely because of her sex – _if you were male, sure; you’re not, so get lost_ – then I’ll prepare to apply intermediate scrutiny to whatever reasoning you advance. If I hear you tell a citizen that she can’t vote or marry someone solely because she’s underage – _if you were a year older, you could_ – then I’ll prepare to apply a mere rational-basis test to whatever reasoning you next advance. If I hear you tell a citizen that she can’t run a rooster-fighting operation in her backyard, and that she still wouldn’t be allowed to do so if she were black, or male, or a different age, or whatever, then it’s a whole different kettle o’fish. And in each case, the remaining words of the Amendment would remain in effect. And, as far as I can tell, plenty of courts have no trouble evaluating laws likewise. ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [September 7, 2014, 8:02pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/46 "2014-09-07T20:02:22Z")
> [@jtgain](#): > > A majority of the legislature or the voters of a state believe that recognition of SSM is harmful for the public morality. And is it? > [@](#): > > They might be wrong, but unless a fundamental right is infringed, a majority is allowed to be wrong. Sure. The question, sooner or later, is whether or not their wrongness, if written into law, can survive a 14th Amendment challenge. Personally, an SSM ban strikes me as a clear exercise in unequal treatment under the law but I might accept it if there was a good reason and so far I have not seen one. > [@](#): > > Why are my hypothetical rooster fights bad for the public? My answer would include some reference to animal cruelty, but I’ll save it for a thread dedicated to that topic. ---
**Author:** ![Rick\_Kitchen](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/rick_kitchen/32/522_2.png) [@Rick\_Kitchen](https://boards.straightdope.com/u/Rick_Kitchen)\ **Post date:** [September 7, 2014, 10:02pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/47 "2014-09-07T22:02:14Z")
One of the attorneys general arguing before the 7th Circuit Court last week (I can’t remember if it was Indiana or Wisconsin) argued that laws making it illegal for gay men to marry gay men aren’t discriminatory because they forbid straight men from marrying straight men. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [September 7, 2014, 10:14pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/48 "2014-09-07T22:14:25Z")
> [@Rick\_Kitchen](#): > > One of the attorneys general arguing before the 7th Circuit Court last week (I can’t remember if it was Indiana or Wisconsin) argued that laws making it illegal for gay men to marry gay men aren’t discriminatory because they forbid straight men from marrying straight men. Just like the **Loving** court could’ve said it’s not discriminatory to forbid white men from marrying black women – so long as the law likewise forbids black men from marrying white women. (Of course, the **Loving** court didn’t say that, because they were too busy realizing _wait, no, that’s still totally discriminatory_.) ---
**Author:** ![andros](https://avatars.discourse-cdn.com/v4/letter/a/e480ec/32.png) [@andros](https://boards.straightdope.com/u/andros)\ **Post date:** [September 7, 2014, 10:40pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/49 "2014-09-07T22:40:46Z")
> [@jtgain](#): > > Further, there is no “irony” in stating that the word marriage means what it has always meant. To say that the 14th amendment changes 900 years of English common law is absurd on its face when marriage redefinition wasn’t even in the contemplation of the drafters. To say that the word “marriage” has held the same societal meaning, connotatively and denotatively, for 900 years is pretty absurd as well. ---
**Author:** ![Apollyon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/apollyon/32/4238_2.png) [@Apollyon](https://boards.straightdope.com/u/Apollyon)\ **Post date:** [September 7, 2014, 11:17pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/50 "2014-09-07T23:17:00Z")
> [@Bryan\_Ekers](#): > > And is it? I’m reminded of a piece I saw John Oliver do on climate change, commenting on a poll that noted that 25% of Americans didn’t accept climate change he responded that it should have been reported as: 1 in 4 Americans are wrong about something. If there is no serious and credible evidence that some morals based law is founded in prevention of actual harm then isn’t the law being based on the rather less convincing grounds of “we just don’t like it”? ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [September 8, 2014, 2:04am UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/51 "2014-09-08T02:04:41Z")
> [@Bryan\_Ekers](#): > > My answer would include some reference to animal cruelty, but I’ll save it for a thread dedicated to that topic. That answer doesn’t hijack the thread, because it is central to the 14th amendment question. Animals are not protected by the constitution, people are. The fact that we have laws against cruel treatment to animals are nothing but a moral judgment of the public that these living things shouldn’t be meaninglessly tortured or suffer pain simply for perverse entertainment purposes. (And it is a moral judgment that I absolutely agree with). In the same vein, these states have enacted morals laws prohibiting SSM on the grounds that it is a belief of the majority of the citizens that homosexual relationships are harmful and giving the state’s blessing to these relationships undercut traditional male-female marriages. So a challenge is based upon the 14th amendment to these laws on the grounds of equal protection and due process. Unless one can point to heightened scrutiny based on sexual orientation, the law must be valid, lest all laws be invalid. The laws against my rooster fights would be invalid as they discriminate against those, as a class, who wish to hold rooster fights. The suggestion was raised that since the law mentions gender, it is subject to heightened scrutiny. That suggestion is defeated by the fact that the 14th amendment itself, which is the basis for the challenge, also explicitly mentions gender in the context of voting. Any fair reading of the amendment would come to the conclusion that the simple mention of gender is subject to heightened scrutiny cannot possibly be the meaning of Section 1, unless the drafters meant the language in Section 2 to render the amendment self-contradictory. Further, and yet again, the law doesn’t promote one gender at the expense of the other. This is opposite of Loving where the law promoted one race at the expense of the others. But more to the point: Lawrence said that morals laws cannot invade a private home. This morals law doesn’t go that far. It simply declines to give public approval to those private relationships. Therefore it passes rational basis as a public morality law, as validated by centuries of case law. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [September 8, 2014, 2:25am UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/52 "2014-09-08T02:25:08Z")
> [@jtgain](#): > > The Constitutional Argument Against SSM that the lawyers are missing. [I mean, what’s more likely – that I have uncovered fundamental flaws in this field that no one in it has ever thought about, or that I need to read a little more? Hint: it’s the one that involves less work.](http://xkcd.com/675/) ---
**Author:** ![Bryan\_Ekers](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bryan_ekers/32/183_2.png) [@Bryan\_Ekers](https://boards.straightdope.com/u/Bryan_Ekers)\ **Post date:** [September 8, 2014, 3:19am UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/53 "2014-09-08T03:19:07Z")
> [@jtgain](#): > > That answer doesn’t hijack the thread, because it is central to the 14th amendment question. Animals are not protected by the constitution, people are. The fact that we have laws against cruel treatment to animals are nothing but a moral judgment of the public that these living things shouldn’t be meaninglessly tortured or suffer pain simply for perverse entertainment purposes. (And it is a moral judgment that I absolutely agree with). Sure. It’s also a tangent I’m not eager to pursue. > [@](#): > > In the same vein, these states have enacted morals laws prohibiting SSM on the grounds that it is a belief of the majority of the citizens that homosexual relationships are harmful and giving the state’s blessing to these relationships undercut traditional male-female marriages. And _are_ they harmful, and _do_ they undercut traditional male-female marriages? > [@](#): > > So a challenge is based upon the 14th amendment to these laws on the grounds of equal protection and due process. Unless one can point to heightened scrutiny based on sexual orientation, the law must be valid, lest all laws be invalid. The laws against my rooster fights would be invalid as they discriminate against those, as a class, who wish to hold rooster fights. Well, I figure sexual orientation is a good candidate for heightened scrutiny and despite some counter-efforts (the reasons for which I don’t understand other than attributing them to hatred and ignorance), I figure the U.S. is headed that way. > [@](#): > > The suggestion was raised that since the law mentions gender, it is subject to heightened scrutiny. That suggestion is defeated by the fact that the 14th amendment itself, which is the basis for the challenge, also explicitly mentions gender in the context of voting. Any fair reading of the amendment would come to the conclusion that the simple mention of gender is subject to heightened scrutiny cannot possibly be the meaning of Section 1, unless the drafters meant the language in Section 2 to render the amendment self-contradictory. Well, a fair reading in the context of 1868, when women voting and same -sex marriage would have seemed self-evidently ridiculous. Today… not so much. > [@](#): > > Further, and yet again, the law doesn’t promote one gender at the expense of the other. This is opposite of Loving where the law promoted one race at the expense of the others. Well, the laws are promoting a sexual orientation at the expense of another, for no good reason I can discern. I get that many Americans _believe_ SSM will be harmful, but will it, really? If you can’t answer in the affirmative, why is it desirable to find a legal justification? > [@](#): > > But more to the point: Lawrence said that morals laws cannot invade a private home. This morals law doesn’t go that far. It simply declines to give public approval to those private relationships. Therefore it passes rational basis as a public morality law, as validated by centuries of case law. A legal marriage isn’t a private relationship, though. It is a matter of public record and carries public obligations and privileges. I get that it can be accepted on “rational basis”, but on grounds that aren’t rational in the everyday use of the word. Personally, I think “rational basis” is a misleading label, but no matter. ---
**Author:** ![Jimmy\_Chitwood](https://avatars.discourse-cdn.com/v4/letter/j/f475e1/32.png) [@Jimmy\_Chitwood](https://boards.straightdope.com/u/Jimmy_Chitwood)\ **Post date:** [September 8, 2014, 3:52am UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/54 "2014-09-08T03:52:02Z")
[QUOTE=jtgain] Now, you might say that the same argument was made in Loving (it treats all races equally by forbidding miscegenation) but there are two important differences: 1. It was a classification based upon race. Those are almost always a no-no. 2. It’s purpose was purity of the white race. It wasn’t based upon anything other than that “pure” white people should not mixed their seed with blacks. Nothing but a disgusting piece of racist claptrap. [/QUOTE] [QUOTE=jtgain] As noted above, the laws in Loving were not race neutral. They were explicitly enacted under a racial purity law and had the purpose of preserving the purity of the white race. They denigrated all other races. There is no such suggestion in anti-SSM laws. The laws don’t elevate or denigrate males or females as a class. Even though gender is mentioned in those laws, the laws don’t harm persons based upon gender or deny any gender the rights granted to the other gender. Therefore they are not subject to intermediate scrutiny, but only rational basis. [/QUOTE] > [@jtgain](#): > > It seems like we keep talking past each other. If you are a black male and walk in with a white woman and are told that you cannot marry her because you are black, then the law was enacted for the sole purpose of denigrating your race. The law basically said that we don’t want your “kind” to spread your seed with white women. It was a disgusting piece of bigotry aimed solely at blacks. I’m sure we agree on that. I think all you’re really doing is arguing politics, which I don’t want to do, but you’re just flatly mistaken about _Loving_. We can say now that the anti-miscegenation laws were only about racial bigotry because we discarded the rhetoric of their proponents. The laws were defended on multiple grounds: first, that there was no discrimination because of the equal application of the law to both black and white (to which the Court said horseshit); but, importantly, also that the intent of the framers of the constitution was never to protect interracial marriage and that there was enough scientific evidence that interracial marriage was inadvisable that the state had a rational basis for the discrimination. The analogy to same-sex marriage is extremely apt here. The Virginia attorney general arguing the case _literally said_ at oral argument that > [@](#): > > prohibition of interracial marriage … stands on the same footing as the prohibition of polygamous marriage, or incestuous marriage or the prescription of minimum ages at which people may marry and the prevention of the marriage of people who are mentally incompetent. He said that there was “voluminous” scientific support for the salutary social and health-related effects of banning miscegenation. It’s only because the Supreme Court gave those arguments the finger that we now all agree, in retrospect, that there was only one (flagrantly illegal) reason for the law at issue in _Loving_. If the proponents of the ban had their way, it would have simply gone into the books as a law to promote the common good, based on the scientific principle that blacks and whites are different and you can’t just make things the same that are different. It’s the same series of arguments. It’s exactly the same thing. Bernard Cohen might as well have been talking about sexuality instead of race when he set out the reasons the law in _Loving_ couldn’t fly: > [@](#): > > Now, whether one articulates in terms of the right to be free from racial discrimination as being due process under the Fourteenth Amendment or whether one talks of the right to be free from infringement of basic values implicit in ordered liberty as Justice Harlan has said in the Griswold case, citing Palko v. Connecticut or if we talk about the right to be free from arbitrary and capricious denials of Fourteenth Amendment liberty as Mr. Justice White has said in the concurring opinion in Griswold or if we urge upon this Court to say as it has said before in Meyer v. Nebraska and Skinner v. Oklahoma that marriage is a fundamental right or liberty and whether we go further and urge that the Court say that this is a fundamental right of liberty retained by the people within the meaning of the Ninth Amendment and within the meaning of liberty in the Due Process Clause of the Fourteenth Amendment. The point is this: these arguments – exactly these – come up over and over again in constitutional law. They always lose, eventually, and unanimously. ---
**Author:** ![The\_Other\_Waldo\_Pepper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/the_other_waldo_pepper/32/12370_2.png) [@The\_Other\_Waldo\_Pepper](https://boards.straightdope.com/u/The_Other_Waldo_Pepper)\ **Post date:** [September 8, 2014, 10:35am UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/55 "2014-09-08T10:35:48Z")
> [@jtgain](#): > > The suggestion was raised that since the law mentions gender, it is subject to heightened scrutiny. That suggestion is defeated by the fact that the 14th amendment itself, which is the basis for the challenge, also explicitly mentions gender in the context of voting. Any fair reading of the amendment would come to the conclusion that the simple mention of gender is subject to heightened scrutiny cannot possibly be the meaning of Section 1, unless the drafters meant the language in Section 2 to render the amendment self-contradictory. No, the “simple mention of gender” doesn’t make it self-contradictory, because it’s entirely possible for a law to pass intermediate scrutiny or even strict scrutiny. > [@](#): > > Further, and yet again, the law doesn’t promote one gender at the expense of the other. This is opposite of Loving where the law promoted one race at the expense of the others. Again, that’s what you point out _when applying heightened scrutiny_. You don’t mention that to keep from applying heightened scrutiny; you note that – because of race or sex or whatever – some citizens are being prohibited from doing what other citizens get to do, and you apply the heightened scrutiny; if you then hear a good enough reason, you _let the law stand_ despite the heightened scrutiny. Or – if it’s a ban on rooster-fighting – you note that the citizen in question would still be banned if he were another sex or another race, and you apply a decidedly lower level of scrutiny; depending on how good a reason you then hear, you strike it down or let it stand. First you decide the level of scrutiny; then you mull the reason. ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [September 8, 2014, 6:08pm UTC](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644/56 "2014-09-08T18:08:55Z")
My WAG: First, people consider marriage to be part of the private home, as in “living your life the way you want in the privacy of your own home”. Saying that marriage is not part of that and is ONLY a public recognition of a union is taking the private home thing too literally. And second, even if Lawrence did not establish that morals were an acceptable basis to create laws, anti-SSM marriage laws touch upon much more than what’s moral or not. There’s discrimination, equal protection, civil rights, etc. One or more of those things outweighs the one ruling that morals can be used to justify laws. [Previous page](https://boards.straightdope.com/t/the-constitutional-argument-against-ssm-that-the-lawyers-are-missing/697644.md?page=2)