Mark Joseph Stern posted an interesting article titled South Carolina to SCOTUS: We Can Discriminate Against Women, So Why Not Gays? over at Slate on Thursday. In his piece, Stern said that a major problem with the theory of originalism “is that the men who wrote our constitution had some pretty barbaric views about humanity.” He pointed out that James Madison, the author of the Bill of Rights, owned hundreds of slaves. Stern said, “The same Congress that passed the 14th Amendment segregated schools and opposed women’s suffrage.” He added that 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.” Stern said the state of South Carolina “is the glittering exception to this cowardice.”
South Carolina is evidently so intent upon continuing to ban gays and lesbians from marrying that it has “filed an amicus brief with the Supreme Court” in the hopes that the state will “continue to be able to do so.” In the amicus brief, the state makes an “‘originalist’ argument that if the Constitution is read just as its drafters understood it, gays can be discriminated against because women can be discriminated against.”
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.
Stern went on to provide 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.
South Carolina Attorney General Alan Wilson wrote the following in his brief: “The Fourteenth Amendment framers went to considerable lengths to preserve the traditional family unit, even insisting upon the subordination of married women. With this in mind, they did not, by any stretch of the imagination, contemplate that same-sex marriage was required by the Amendment or its Due Process Clause.”
Stern noted that the state of South Carolina may have its history right. He wrote: “Congressional records show that the men who drafted the 14th Amendment were pretty adamant that their measure wouldn’t force states to recognize married women as independent humans with rights of their own. John Bingham, the chief framer of the amendment, assured one sexist congressman that he ‘need not be alarmed’ that the measure would alter ‘the condition of married women,’ since it would leave intact state property laws. Another framer, Samuel Shellabarger, explained that under the equal protection clause, states could still ‘deprive women of the right to sue or contract or testify.’”
Caitlin MacNeal (TPM) said that the amicus brief “does acknowledge that the framers’ views on women are no longer held by lawmakers in South Carolina, but argues that the history of the amendment still backs up same-sex marriage bans.” Wilson wrote, “The historic evidence concerning the treatment of women, presented as the views of the Fourteenth Amendment’s framers are not those of the State today. Seemingly anachronistic, such evidence is, nevertheless, reflective of the Amendment’s original meaning which we believe controls this case.”
Click here to read the amicus brief.