Add the state of South Carolina to the long list of interested parties to file a brief in the marriage cases that asserts a truly appalling position on the question. But this one is particularly bad because it focuses on what the 14th Amendment does and does not allow. Spoiler alert: It allows damn near anything, including the explicit oppression of women.
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 10thAmendment 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.
As a matter of history, they’re correct. The framers of the 14th Amendment really did assure people that it would not overturn state marriage laws. But South Carolina gets another part of that history completely wrong and they do so for a very convenient and specific reason. Conservatives want to have it both ways on this, with only a few exceptions. They want to say that the 14th Amendment applied only to racial equality, not gender or sexual orientation. But they also don’t want to admit that the 14th Amendment, if interpreted the way they want to interpret, through the statements of the framers of that amendment, also would not support the outcome in Loving v Virginia, which overturned state laws banning interracial marriage. So they just flatly declare that the 14th Amendment did apply to such state laws. They start early on in the brief with this declaration:
Where there is a “longstanding and still extant societal tradition withholding the very right” being sought, the Fourteenth Amendment will not supply that right. As a result, a construction “contrary to the intentions of the Framers of the Fourteenth Amendment” must be rejected.
Okay, so the intent of the framers of that amendment is the single controlling criteria, according to South Carolina’s Attorney General. Later:
Okay, so the amendment overturned state laws against interracial marriage, but left everything else up to the states. So what is their actual argument for why the 14th Amendment overturns miscegenation laws?
The Fourteenth Amendment certainly proscribes laws banning interracial marriage – a product of the Jim Crow era – and part of the State-sponsored racial discrimination the Amendment sought to extinguish. However, apart from those blatantly racial enactments, the institution of marriage “. . . has long been regarded as a virtually exclusive province of the states.”
Using race to define marriage, as in Loving, crosses the Fourteenth Amendment line. But using the traditional definition of marriage, accepted everywhere at the time of the Amendment’s adoption in 1868, as well
as when Loving was decided in 1967, does not. The common law prohibited same-sex marriage, but permitted interracial marriages between man and woman. Such racial prohibitions were the product of statute in the “era of Jim Crow racism.”
Scholars document that the Fourteenth Amendment framers intended to prohibit laws banning interracial marriage. Indeed, contemporaneously with the Fourteenth Amendment’s adoption, in Burns v. State, 48 Ala. 195, 197 (1872), the Alabama Supreme Court so concluded.
Ah yes, “scholars document.” Let’s see what legal scholar Randall Kennedy of Harvard Law School had to say about it in his book Interracial Intimacies:
The historical record strongly indicates that the politicians who framed the Fourteenth Amendment did not intend for it to render illegal statutes prohibiting interracial marriage. During debates held prior to congressional passage of the Fourteenth Amendment, its proponents repeatedly denied that it would affect the legality of properly drafted antimiscegenation laws. They argued that the proposed provisions constituted no threat to race-neutral antimiscegenation laws, since such statutes discriminated against no one and no group in particular but rather applied equally to all. Some — perhaps many — of the Amendment’s authors did not even mean for it to embrace political and social as opposed to civil rights (e.g., entering into contracts, owning property and testifying in court. Twenty-nine states retained antimiscegenation laws after the Civil War. The Alabama Supreme Court, for its part, invalidated an antimiscegenation statute pursuant to changes in federal law and the federal constitution, but that notable decision was also idiosyncratic, and it was soon reversed. The near consensus of judicial opinion in the aftermath of the ratification of the Fourteenth Amendment was that neither it not any of the other other reforms of Reconstruction impaired states’ authority to prohibit interracial sex or marriage.
So in fact, the intent of the framers was clearly not to overturn state laws banning interracial marriage. And a state supreme court decision that is in no way binding on the SCOTUS and that was quickly reversed is hardly evidence to the contrary. They have to strain to make this argument because they know that the reality actually contradicts their position and that to claim that Loving was wrongly decided is pretty much the kiss of death legally and politically. Ah, what tangled webs we weave when first we practice to make pretextual arguments of political convenience to avoid looking like racist assholes.
Leaving the wrongness of that portion of the brief aside, what the brief really argues is this: “Well hell, the constitution allows us to oppress women, so why on earth can’t we oppress black people too. And here’s the punchline:
Update, April 9, 2015: The South Carolina solicitor general, as well as a representative from the office of the attorney general, have asked us to note that their state does not wish to implement the sexist laws outlined in its brief—though it could if it wanted to.
I feel so much better now.