South Carolina Files Appalling Brief in Marriage Cases

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:

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.”

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?

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.

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  • John Pieret

    They are playing to Scalia’s majoritarian views. Scalia once said this in an interview:

    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?

    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.

    http://www.callawyer.com/Clstory.cfm?eid=913358

  • coragyps

    Is it possible that some non-Neanderthal lawyer wrote that to torpedo the anti-SSM crowd? Scalia might still take it at face value, I guess….

  • http://www.facebook.com/profile.php?id=1399822355 markmckee

    Please try to take this argument as an intellectual exercise. Though someday I do hope it becomes more acceptable as a real argument.

    At the time of the Constitution the founders clearly meant that all men meant white men, indeed, it clearly meant all propertied white men.

    So if we did not have the 13th and 14th amendments, or those amendments were repealed, would that mean slavery could return? Or would we argue that in the minds of modern man, “all men” refers to “ALL” men as well as “ALL” women.

    IOW, IMHO, it would take someone with a morally reprehensible character to argue that black people don’t have rights because they are endowed by their creator with having them. That is because that argument in their minds would only apply to white males. Those morally reprehensible arguers would have to argue that black people only have rights because of the 13th and 14th amendments.

    Thus in many ways it matters not what the founders thought or wrote. If what they thought and wrote was/is morally reprehensible by today’s standards then it doesn’t need some special ruling to correct it. Thus the question: “When did the 14th amendment come to mean that gay marriage was OK?” is an irrelevant question. Gay marriage was OK since the dawn of marriage. Its just that the arbiters of that correctness were just too ignorant at the time to realize it. And slavery was/is morally reprehensible and “unconstitutional” since the dawn of relationships, notwithstanding whatever the founders wrote in 1787.

  • D. C. Sessions

    As usual, Scalia’s arguments are purely in support of his desired outcome. In witness whereof, please see his support of Citizens United, wherein money is speech (although in prior cases burning a flag is not.)

  • Michael Heath

    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.

    [Heath bolds here]

    Whether intended or not, this argument stands on an original meaning argument rather than an original intent argument. The 14th Amendment’s relevant clauses:

    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.

    This argument leaves the bigots with the premise that gay people have a right to get married, but then idiotically concludes not to someone of the same sex.

    The arguments made by proponents of the 14th Amendment during its development were making a really bad argument; an argument that is not contained within the actual text of Amendment. This is mere rhetoric and poorly done. We are under no obligation to cede good arguments today for structurally defective arguments made to market the 14th Amendment.

    This passage also reveals why an original intent argument is so often such an un-compelling argument; especially compared to an original meaning argument.

  • StevoR

    I feel so much better now.

    I don’t. Reassured I am not,

  • Michael Heath

    markmckee,

    Your argument presumes the key founding docs are referring to ‘men’. They are mostly not, but instead ‘people’. I suggest reading the U.S. Constitution to compare its usage of men to people.

    In addition, the scholars I’ve read reveal that in most cases the use of people in the Constitution means each human individually, not necessarily citizens and not majorities. The slave as 3/5’s a person actually illustrates this though in a morally reprehensible manner.

    The reference to a collection of individuals is one reason we are a liberal democracy. Because we’re a democracy that claims to be dedicated to the protection of some of an individual person’s rights.

    Of course the protection of individual rights didn’t get applied fairly to certain groups of people; they don’t now. But your argument starts with a primarily false premise. That makes it far more difficult to argue for equality now than you actually have to when citing the supreme law of the land.

  • marcus

    “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.”

    Yeah, have at it you assholes. I would love to see the public relations nightmare that an attempt of that nature would unleash on SC.

  • David C Brayton

    I can see Justice Thomas wholeheartedly agreeing with South Carolina’s analysis. His jurisprudence is ever father to the right than Justice Scalia’s. But Thomas’ jurisprudence is more principled than Scalia’s. Scalia searches for outcome he wants and then gives a reason why. Thomas on the other hand, follows his analysis whatever result is produced.

  • http://www.patheos.com/blogs/dispatches Ed Brayton

    Michael Heath wrote:

    We are under no obligation to cede good arguments today for structurally defective arguments made to market the 14th Amendment.

    Very well said. Wish I’d been as eloquent.

  • pixiedust

    Years ago a commenter on one of the atheists sites I visit — maybe even this one — observed that we could amend the 14th amendment to include women. All we need to do is replace “person” with “person”. What conservative originalist could object to that?

  • Crip Dyke, Right Reverend Feminist FuckToy of Death & Her Handmaiden

    @Michael Heath:

    Whether intended or not, this argument stands on an original meaning argument rather than an original intent argument.

    yes, it does. Strauder in particular is quite specific about how the contemporary SCOTUS perceived the 14th’s intent. “Stigmata” and “incidents” figured much more highly even than “equality” IIRC – though in that case equality wasn’t at odds with removing “stigmata” and “incidents of slavery”.

  • Childermass

    coragyps @ 2: “Is it possible that some non-Neanderthal lawyer wrote that to torpedo the anti-SSM crowd?”

    The Neandertal Anti-Defamation League would like to point out that no Neandertal was in any way responsible what is going on in South Carolina.

  • lorn

    I sort of hope that that argument makes it to the supreme court and that the SC interpretation was upheld. The blow back would be epic, if not Biblical, in proportion and the GOP run house and senate would be forced, reference “Lysistrata”, to capitulate and come up with a law and/or constitutional amendment which would clarify the situation and make the intended protections both perfectly clear in intent and well rooted in the constitution.

    Yes , there would be some rough sledding as better than half the population, women, minorities and non-land-holding men could become administratively and legally second-class citizens but this would be, I trust, but a short term lapse until such time as elected official are introduced to real democracy at a constitutional convention. Shake-rattle-and roll.

    This might be a very good thing. The US constitution is ancient. When first proposed it was revolutionary. Eschewing the divine rights of Kings, and their dependency upon supernatural beings while handing it all over to the consent of “the people” was wild, heady stuff. It had never been tried. Now the US constitution seems antiquated with its , its poorly articulated division of powers and winner-take-all delivery and, as a practical consequence, its promotion of a grossly inefficient two-party system. A multiparty parliamentarian system would be more nuanced. Let the games begin.