South Carolina's AG has filed a very interesting (and, offensive) amicus brief with the SCOTUS in support of the marriage equality bans. It argues an originalist approach to interpreting the US Constitution. They argue that when the 14th Amendment was ratified, married women were still not granted independence from their husbands in terms of their rights under the law. They could not own property or enter into contracts in many states. The brief argues that the 10th Amendment gave states the right to continue to discriminate against women even after the Fourteenth Amendment was ratified. So, they should be allowed to discriminate against gays as well.
From Slate:
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.
The state may well have its history right here. 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.”
Of course, all that was before the SCOTUS ruled that laws that disadvantage women were subject to heightened scrutiny under the equal protection clause.
The Slate article adds this update:
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.
Well, that's awfully good of them, huh?
You can read the entire brief here.
The SCOTUS will hear arguments in the marriage equality cases from the Sixth Circuit (Michigan, Ohio, Kentucky, and Tennessee) on April 28. A ruling should be announced by the end of June.
9:08 AM PT: Today, Slate gives us another interesting originalist take/view on interpreting the constitution which favors marriage equality.
http://www.slate.com/...