All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.
Section 2.
Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.
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Of course, section one’s equal protection and due process clauses are what gets the most attention, but when you are interpreting what those terms mean, don’t you have to read the amendment as a whole?
If the question arises, “Does equal protection mean that women cannot be denied the right to vote?” wouldn’t any court that is not simply result oriented have to say “no”? The very same amendment which talks of equal protection and due process allows states to deny the vote to females and to those under 21 years of age. It even allows states to deny the vote based upon race, so long as that state’s representation in Congress is also reduced proportionally.
It took subsequent amendments to disallow voting based upon race, gender, and those over age 18. Wouldn’t you concede that a “modern reading” of the 14th guaranteeing women the right to vote would be in error?
No. I’d say that, taken literally, the grand sweeping diction of Section 1 guarantees it; and I’d say that, while folks back then apparently failed to realize what happens if that law is taken literally, the courts have long since extrapolated the blindingly obvious conclusion: a “modern reading” which boils down to mere accuracy.
Which is more likely: that the folks back in 1867 were blithering idiots who didn’t understand the words that they were writing and thereby made them hopelessly self contradictory, or that judges 100 years later misread the words to achieve a results-oriented opinion?
But back to the OP so as to not hijack my own thread. Does anyone want to take the opinion that Lawrence put an end to all morals laws? Scalia said so in his dissent, but Kennedy took pains to say that the holding did not extend to same sex marriage. So doesn’t the status quo ex ante still stand with regards to morals laws, with the Lawrence exception that they may not go so far as to intrude into the home? Morals laws may still stand when people seek public recognition and approval of those private activities and states can decline to recognize or approve them.
More simply: When the support for that statement is the 14th amendment, and that amendment itself uses the word “male” with regard to voting rights, doesn’t that make your argument facially absurd?
Look, 100 years after 1867 came the Loving decision; why did it take that long to stop misreading those words in favor of 100% accuracy? The correct reading couldn’t have been more obvious; the only thing “results-oriented” about the approach that eventually got 'em right is the modest goal of reading the words correctly in order to apply them accordingly.
I’d note that it doesn’t rule out female voting rights – and I’d add that ruling out female voting rights would be facially absurd given the plain language used elsewhere in the 14th Amendment. I’d grant that such an argument may well not have prevailed against the folks who (a) wrote it and (b) might not have seen it as absurd; but I’d argue that, hey, if you didn’t actually mean it that way, then you shouldn’t have actually written it that way.
It’s pretty much to the point where I have to choose between misreading the letter of the law to the detriment of my fellow citizens, or reading it accurately to let justice prevail – and, well, that’s, like, the opposite of a tough decision.
Well, I’m not going to be the one to play semantics, but basing something on “tradition” seems to say that no matter what modern society believes we will just do things the way we always have, anything different be damned. That seems to be irrational.
Morals laws reflect contemporary values that persist even until now. Of course homosexuality and SSM have gained approval in recent years. But in most states, there is still a majority against those things. That majority believes that homosexual conduct and SSM are harmful to the public good, health, and morality. Lawrence said that such a belief is not good enough to intrude into a bedroom and tell a couple that they cannot engage in sodomy. It didn’t say that all morals laws, always and forever, cannot sustain a challenge.
It really comes down to a value judgment. I have a law degree and am admitted to the bar. All of these judges, and especially the Supreme Court Justices, have the same degree, are admitted to the bar, and are a hell of a lot smarter than me. The guy that works at Wal-Mart doesn’t have any of those degrees and is probably not as smart as any of us.
But if we are talking about purely legal issues, then our opinions would probably carry more weight; we have been educated about these things. If we are talking about simply what is right and wrong, then my legal degree doesn’t mean dick. The guy who works at Wal-Mart is equally as capable of determining right and wrong as me, the 4th Circuit, and the Supreme Court. Our legal training doesn’t give us a leg up on morality or the good and bad of a certain law. That is what democracy is for: people through their elected representatives express their will as to what should be allowed in society.
And they do that today as they have done for 900 years. If I have rooster fights on my farm, that is harming NOBODY, yet the legislature has decided that it is simply wrong for its own sake. Many laws harm nobody but are enacted because a majority believes that they are necessary for public health, order, and morality. Lawrence or Windsor didn’t change this.
Please use your legal training to briefly explain the difference between strict scrutiny, intermediate scrutiny, and rational basis scrutiny; follow up with quick mention of what the courts consider when deciding whether to strike down laws that codify discrimination on the basis of race, on the basis of sex, and on the basis of, oh, say, height; and specify whether any of that is relevant to a ban on rooster fights.
I decline your offer to write a treatise on case law. It is readily available on the internet and in prior threads on the subject.
To whatever extent prior case law has suggested (and I don’t concede that it has) that laws against same sex marriage are proscribed by the 14th amendment because they mention gender, they are wrong and should be overturned.
The 14th amendment didn’t propose to repeal the common law. It gave many rights to many people, but it didn’t purport to redefine basic terms of law.
Further, you haven’t shown discrimination in the law. There is no showing that the marriage laws intend to promote one gender and demean the other. THAT was the point of Loving: the law was for the preservation of the “superiority” of the white race. Anti-SSM laws don’t promote males or females. The law is neutral with regard to gender, and that is why heightened scrutiny shouldn’t apply.
Bans on SSM are the same as bans on rooster fights on my farm: they are rationally related to protect a state’s interest in preserving public morality and health. One might disagree that a state should prohibit SSM or rooster fights. That is what the democratic process is for; it can change when the public changes its opinions.
The law is neutral with regard to gender in the exact same way that the ban struck down by Loving was neutral with regard to race.
The old law – which couldn’t pass strict scrutiny – said a white man could marry a white, but not a black; if he were black, he could marry a black but not a white.
This law says a white man can marry a woman, but not a man; if he were a woman, he could marry a man, but not a woman. Can that pass intermediate scrutiny?
Here’s the problem your treatise should address: if me and mine make up a majority, and we pass a law tomorrow that codifies race-based discrimination – say, blacks can’t marry whites, and whites can’t marry blacks, or maybe blacks are hereby banned from inheriting property from whites and vice versa, or possibly blacks are no longer allowed to practice medicine – then, as you should know, we’re supposed to say I Don’t Give A Crap What Public Opinion Says; If That Law Fails Strict Scrutiny Review, It’s Going Down Faster Than A Ban On Unpopular Free Speech.
If the public cries out for majority rule when passing a law that bans one race from doing what another can do – dutifully noting that, were this individual of the other race, he’d of course be allowed to do it – then apply strict scrutiny and ignore public opinion, right? And if a majority instead favors barring women from something men are allowed to do – carefully specifying that, if she were male, it’d be fine – then apply intermediate scrutiny and ignore public opinion, right?
And if public opinion favors banning rooster fights, then apply neither strict scrutiny nor intermediate scrutiny, right?
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.
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As regards an SSM ban… how so?
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A majority of the legislature or the voters of a state believe that recognition of SSM is harmful for the public morality. They might be wrong, but unless a fundamental right is infringed, a majority is allowed to be wrong.
Why are my hypothetical rooster fights bad for the public?
If I walk in with a guy, and say “I want to marry this guy,” and get told “You could if you were a woman, but can’t because you’re a man,” that exactly parallels the pre-Loving situation: where I say “I want to marry this woman,” and get told “You could if you were black, but can’t because you’re white”.
In one case, I’m being denied a right granted to the other race; that deserves (a) strict scrutiny, and (b) to be struck down, regardless of public opinion. In the other case, I’m being denied a right granted to the other gender; it’s time to apply intermediate scrutiny and do likewise.
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.
If you are told you cannot marry another guy because you are male, the purpose of the law is not to denigrate males. Can we agree on that? Laws against SSM pre-dated the 14th amendment and continue for almost 150 years after. They do not discriminate based upon gender because everyone is equally prohibited from marrying someone of their own gender. (And don’t try to tell me that this is the same as Loving, see above).
Here’s a good related question. I would bet that the same unanimous court in Loving would also vote 9-0 against finding a constitutional right to SSM. Do you disagree?
I’ll agree to that, it doesn’t denigrate males, it denigrates gay people.
The law was enacted for the sole purpose of denigrating gay people. The law said that we don’t want your “kind” to have the same legal rights as others. The law is intended to preserve the “purity” of heterosexual relations by denying other relations equal footing. It is a disgusting piece of bigotry aimed solely at gay people. Can we agree on that?
I also absolutely believe that the unanimous court in Loving, the one that deemed the right to marry a “basic civil right” would, in the very next breath, say “but not for those disgusting homos” and would not for a moment appreciate the irony. Such are the depths from which homosexuals had to rise to even be considered valid human beings deserving of basic rights.
And it also banned white men from marrying black women – the exact case in Loving. And if a majority decided to pass an identical law today, either for “denigration” reasons or “seed” reasons or, yes, “morality”, we’d apply strict scrutiny.
That’s the part you keep skipping over: the law struck down in Loving may have had a bad reason behind it, but we don’t get to that until after deciding to apply strict scrutiny. We don’t get to the bit about whether the current law is built on denigration or “morality” or whatever until after deciding to apply intermediate scrutiny.
They mirror each other in what they ban. You say they don’t mirror each other in why they so ban? Fine, make that argument when applying the relevant level of scrutiny.
I agree. They were bigoted against homosexuals and so misread the plain wording. Many judges today don’t happen to be bigoted against homosexual and so can read th plain wording correctly. I also don’t happen to be bigoted against homosexuals and so can also read the plain wording correctly instead of misreading it.
All laws, against anything, discriminate against and denigrate those who have a propensity to break that law. That statement is non-controversial. To transform such statement into an equal protection violation would mean that no laws could be passed, ever.
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.
So why should we put sexual orientation on that pedestal? It wasn’t contemplated by the 14th amendment. What then is the standard for finding a fundamental right? Is it when high-minded liberals decide that something is good enough? That seems to be the only reason for finding that SSM has found that pedestal.
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.
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.