The State of South Carolina Files Amicus Brief with SCOTUS…Claims It Is Legal to Discriminate Against Women–So Why Not Against Gays?

Seal_of_South_Carolina.svgBy Elaine Magliaro

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.”

Alan Wilson Attorney General of South Carolina

Alan Wilson
Attorney General of South Carolina

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.


South Carolina Waves Constitution Around To Prove Gays Can’t Get Married And Ladies Are Chattel (Wonkette)

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

South Carolina argues to Supreme Court that it can discriminate against gays AND women (Daily Kos)

S.C. Defends Gay Marriage Ban By Noting Discrimination Against Women (TPM)

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6 Responses to The State of South Carolina Files Amicus Brief with SCOTUS…Claims It Is Legal to Discriminate Against Women–So Why Not Against Gays?

  1. rafflaw says:

    Pigs must be flying somewhere!

  2. Elaine M. says:

    S.C. Says Constitution Allows Discrimination Against Women So Gay Discrimination Is Okay

    Shame is a human emotion manifest by a painful feeling arising from the consciousness of something dishonorable, improper, or ridiculous done by oneself. There are human beings who lack that feeling and are typically blatant racists or, really, any kind of blatant bigot. Americans have seen a preponderance of shameless bigots since the people elected an African American man as President, and besides openly championing discrimination against people of color, the LGBT community, and non-Christians, women have been singled out as pariahs the religious patriarchs have openly targeted for second class status.

    Since it has become a badge of honor among Republicans to blatantly discriminate against women in the workplace, reproductive rights, access to healthcare, and equal rights, it was little surprise that South Carolina Republicans used an anti-women agenda as reason to discriminate against gays. As the Supreme Court is beginning to hear arguments for and against gays and lesbians marrying the person they love, different groups on each side of the argument have filed ‘amicus briefs’ with the Court advocating for a ruling in their favor.

    South Carolina Republicans joined the fray and filed an amicus brief with the Supreme Court defending their right to openly discriminate against the gay community based on the long history of Republicans discriminating against women. The crux of South Carolina’s argument in support of discriminating against gays is that if it constitutionally permissible to discriminate against women, then it is perfectly legal to discriminate against gays. Where most people would never admit they target women for discrimination, and get away with it, South Carolina Republicans shamelessly used it as legal precedent to express their religion-based bigotry toward the gay community…

  3. Elaine,

    Ones true nature is always revealed in the end, but to change that nature for the better is a choice. Who will those practicing the politics of division and “the other” have to scapegoat without women and homosexuals now that the Civil Rights Act prohibits racial discrimination? Why . . . they might have to start formulating actual rational policies that get something done other than make one group feel superior at the expense of the other groups rights and basic human dignity. They might have to consider things like “fairness” and “equity” and “justice” when formulating policy instead of “what makes me the most money” and/or “what keeps me in power”.

    And we can’t have any of that.

    That kind of change is a lot like real work.

  4. swarthmoremom says: “olice announced on Tuesday that they were investigating the killing of staffer Ron Lane as a possible hate crime. While officials have yet to release a motive, Lane’s supervisor, Brent Hood, said the victim was gay, according to television station WXII.

    Lane, an 18 year employee of the community college, was killed shortly after arriving on campus Monday morning. Authorities said Stancil was a former work-study student who had worked under Lane at the college’s print shop.

    Mark Pitcavage, the director of investigative research for the Anti-Defamation League, told TPM on Tuesday that signs of Stancil’s neo-Nazi affiliations went beyond his face tattoo.

    Pitcavage sent TPM screengrabs of a profile that Stancil appeared to have created on New Saxon, a social networking site for “people of European descent.”

    On the profile, Stancil listed “motorcycles, white pride, adolf hitler, bavarian motor works” and “guns” as his interests. The only book on his profile was “My struggle,” or “Mein Kampf,” according to Pitcavage. Stancil noted that he disliked “race traitors” and described himself as a “6 ft 2 in, Aryan man” with “blondish brown hair” and blue eyes. Among his hobbies, he noted an interest in welding, auto mechanics and “tattoo artist.””

  5. Reblogged this on Website High Atop The Thing and commented:
    Absolutely un-real

  6. Elaine M. says:


    3 Bizarre State Briefs Defending Gay Marriage Bans

    In the months leading up to Tuesday’s oral arguments on whether states can ban same-sex marriage, individuals, groups, and governments were able to submit briefs to the Supreme Court either defending or refuting the bans.

    The Supreme Court received a record number of amicus briefs for this case, as well as briefs from the four states defending their state bans: Kentucky, Ohio, Michigan, Tennessee.

    The governors and attorneys general from Kentucky, Ohio, and South Carolina submitted briefs with particularly bizarre arguments defending state bans on gay marriage.


    In a brief defending the state’s ban on gay marriage, Kentucky Gov. Steve Beshear (D) (pictured above) argued that the ban is not discriminatory because the state does not allow gay or straight people to marry someone of the same sex.

    “Kentucky’s marriage laws treat homosexuals and heterosexuals the same and are facially neutral. Men and women, whether heterosexual or homosexual, are free to marry persons of the opposite sex under Kentucky law, and men and women, whether heterosexual or homosexual, cannot marry persons of the same sex under Kentucky law,” Leigh Gross Latherow, Beshear’s lawyer, wrote in the brief.


    Ohio Attorney General Mike DeWine submitted a brief defending the state’s ban on state marriage, arguing that gays and lesbians don’t need protections anymore.

    DeWine wrote that gays have “‘attract[ed] the attention of the lawmakers at every level of government.” He argued that because gay people can gain so much attention from politicians, “any discrimination against them has been on a steady decline.”

    He said that “protected class” status is only “reserved for those ‘relegated to such a position of political powerlessness.'”

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