South Carolina to SCOTUS: We Can Discriminate Against Women, So Why Not Gays?

[joeybee12]

One key problem with originalism—the theory that the Constitution should be interpreted as its drafters understood it—is that the men who wrote our constitution had some pretty barbaric views about humanity. The author of the Bill of Rights, James Madison, owned hundreds of slaves. The same Congress that passed the 14th Amendment segregated schools and opposed women’s suffrage. Under originalist theory, almost every landmark equality case, including Brown v. Board of Education, is almost certainly wrong. Few originalists, however, have the courage to admit that their theory would lead to an appallingly unequal and unjust America.

South Carolina, it turns out, is the glittering exception to this cowardice. In a jaw-dropping amicus brief recently filed with the Supreme Court, the state’s attorney general argues for a truly originalist understanding of the 14th Amendment, insisting that the Constitution permits discrimination not just against gays, but also against women. This argument is as morally abhorrent as it is historically accurate. And South Carolina deserves some credit for having the chutzpah to raise it.

Here’s the gist of South Carolina’s fascinatingly sexist argument. The state wants to prove that the 14th Amendment—which guarantees “equal protection of the laws” to every “person”—was not intended to displace state marriage laws. And what did those laws look like at the time? One major feature: In many states, married women were not permitted to own property or enter into contracts and had no legal existence apart from their husbands. According to South Carolina, the framers of the 14th Amendment explicitly preserved the rights of states to deprive married women of the ability to function independently from her husband. This right to deprive married women of basic liberties, South Carolina argues, is enshrined in the 10th Amendment and is not at all undercut by the 14th Amendment’s guarantee of equality.

The crux of South Carolina’s brief, then, is this: If the 14th Amendment permits discrimination against married women, it surely also allows discrimination against gay people who wish to wed. In fact, according to South Carolina, the 14th Amendment forbids only racial discrimination, leaving states free to disadvantage women and gays in any way they wish.

http://www.slate.com/blogs/outward/2015/04/09/south_carolina_we_can_discriminate_against_women_so_why_not_gays.html

[atreides1]

1. This is a good one

I wonder how the governor and other women in state office feel about this tactic?

It must make them feel so liberated knowing that their own attorney general believes that as women they have no rights except that which is given them by their husbands!

[Ilsa]

9. If the AG is successful, someone in SC should start

A petition to remove the governor from office, just to prove a point and see how they like this backfire.

[nykym]

2. And so accordingly

all women in SC would be unable to hold political office.

One major feature: In many states, married women were not permitted to own property or enter into contracts and had no legal existence apart from their husbands. According to South Carolina, the framers of the 14th Amendment explicitly preserved the rights of states to deprive married women of the ability to function independently from her husband. This right to deprive married women of basic liberties, South Carolina argues, is enshrined in the 10th Amendment and is not at all undercut by the 14th Amendment’s guarantee of equality.

Be very careful of what you wish for you may just get it.

[Ilsa]

10. If the AG is successful, someone in SC

sould start a petition to remove Haley from office as she no longer has legal standing to govern. Unless she wants to divorce or swap genders with her husband!

[Small Accumulates]

3. Antonin Scalia has made this same argument publicly

In an interview with California Lawyer magazine, he said:

Q: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
Scalia: Yes, yes. Sorry, to tell you that. ... But, you know, if indeed the current society has come to different views, that's fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society.

I can't find the original interview in Callawyer, but the Washington Post published an excerpt, along with other, similar Scalia statements:
http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html

[Fortinbras Armstrong]

17. When fans of original intent point to Scalia, you should mention the case of

Gonzales v. Raich, 545 U.S. 1 (2005). Angel Raich was growing marijuana for her own medicinal use -- which was legal under California law. The Supreme Court, in a 6-3 decision, held this to be illegal under Federal law. A concurring opinion was written by Scalia, who based the decision ultimately under the Interstate Commerce clause of the Constitution and the Necessary and Proper Clause, saying

Unlike the power to regulate activities that have a substantial effect on interstate commerce, the power to enact laws enabling effective regulation of interstate commerce can only be exercised in conjunction with congressional regulation of an interstate market, and it extends only to those measures necessary to make the interstate regulation effective. As [US v Lopez, 514 US 549 (1995)] itself states, and the Court affirms today, Congress may regulate noneconomic intrastate activities only where the failure to do so “could ... undercut” its regulation of interstate commerce. ... This is not a power that threatens to obliterate the line between “what is truly national and what is truly local.

Interestingly enough, Justice O'Connor based her dissent on exactly the same case Scalia based his concurrence, Lopez. She said that Lopez placed limits on Federal use of the Interstate Commerce clause and Raich's use of marijuana came under those limits.

Clarence Thomas, of all people, said that the majority was wrong, saying that Raich grew and used

marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana. If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything--and the Federal government is no longer one of limited and enumerated powers. ... By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power.

Thomas wrote: "The Necessary and Proper Clause is not a warrant to Congress to enact any law that bears some conceivable connection to the exercise of an enumerated power". He went on to say "Congress presented no evidence in support of its conclusions, which are not so much findings of fact as assertions of power," and concluded: "Congress cannot define the scope of its own power merely by declaring the necessity of its enactments".

The gist of Thomas' dissent comes straight out of original intent:

Respondent's local cultivation and consumption of marijuana is not "Commerce ... among the several States". Certainly no evidence from the founding suggests that "commerce" included the mere possession of a good or some personal activity that did not involve trade or exchange for value. In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana.

I believe that here, Thomas is quite right, and Scalia only really supports "original intent" when he agrees with it.

[niyad]

4. it is too early in the morning to imbibe teh required liquids to read that insanity.

[Nitram]

5. It would be funny to observe the twisted knots conservativeds tie themselves into,

justifying their absurd notions about the constitution and government, if their actions did not have significant deleterious effects on actual American lives.

[eShirl]

6. Do we need a new Equal Rights Amendment to cover both women in general and LGBT?

[valerief]

8. Remember how the last ERA died? It seemed amazing to me at that time, but

I'm from the Northeast and had no idea how the woman-hating, woman-enslaving religions in other parts of the country could ever deny its passing. But it did.

Which 15 states have not ratified the ERA?

The 15 states whose legislatures have not ratified the Equal Rights Amendment are Alabama, Arizona, Arkansas, Florida, Georgia, Illinois, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, South Carolina, Utah, and Virginia.

http://www.equalrightsamendment.org/

Amazingly, Texas isn't on that list. Of course, it passed back when Texas was Democratic.

1972
In the first year, 22 states ratified the ERA.
Alaska, California, Colorado, Delaware, Hawaii, Idaho, Iowa, Kansas, Kentucky, Maryland, Massachusetts, Michigan, Nebraska, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Tennessee, Texas, West Virginia, Wisconsin

http://womenshistory.about.com/od/equalrightsamendment/a/When-Did-States-Ratify-ERA.htm

[pnwmom]

16. One of the arguments against it was that it would lead to gay marriage. So, yes. n/t

[Vattel]

7. This is unfair to most originalists.

Few originalists think that you find the meaning of the law in the intentions or expectations of its framers. Most think that it is the original public meaning of the relevant text that matters. Thus, the 14th amendment requires equal protection of the laws period and if that requires marriage equality then it doesn't matter if the framers of the 14th amendment expected that result.

[Fortinbras Armstrong]

18. I would change your "most" to "some"

I have come across many originalists who say that the words, intentions and expectations of the framers is all-important.

My real problem with originalism was expressed by Thomas Jefferson, a voice significant to originalists

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the Covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment... laws and institutions must go hand in hand with the progress of the human mind... as that becomes more developed, more enlightened, as new discoveries are made, institutions must advance also, to keep pace with the times.... We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain forever under the regimen of their barbarous ancestors.

In other words, what is damn sacrosanct about the framers?

[Vattel]

19. Yeah, I should have said "some". I am not sure what percentage is in each camp.

I guess I think the importance of adhering to a constitution as originally understood depends on whether it is a good constitution so understood. It is difficult for a constitution to protect rights, for example, if it can be ignored or easily "reinterpreted" when the majority of citizens or the government wants to get rid of constitutional obstacles to their objectives. Too much flexibility in interpretation is inconsistent with robust protection of rights.

[blkmusclmachine]

11. It's a convenient shield to hide Scalia's/Thomas' faux religious bigotry.

[KamaAina]

12. "Too small to be a country, too large to be an insane asylum."

-19th-century South Carolinian

[47of74]

13. South Carolina wasn't slapped down nearly hard enough after the Civil War.

I'm sorry but that's how I see it. These were the same people who started the Civil War.

[blkmusclmachine]

14. The GOP's WAR ON WOMEN~The GOP really doesn't like women, do they?!?!

[roamer65]

15. Pathetic. N/t