Wednesday, November 19, 2014

Same-Sex Marriage 14th Amendment Fail: Why the Constitution does not require us to abandon traditional marriage, Part I

The first in a series on where the arguments against traditional marriage go wrong

Advocates of same-sex marriage use the 14th Amendment as a sort of incantation by which they think they can magically transform marriage from an inherently complementary relationship between a man and a woman into one which assumes that men and women are interchangeable. And instead of calling them on the bad arguments they use to do this, activist judges have not just looked the other way, but have actively cooperated in passing off the faulty arguments in favor of same-sex marriage as legitimate.

The 14th Amendment argument is probably the most common argument used in favor of same-sex marriage. "To deny gays the right to marry violates the 14th Amendment," they will say, and, largely because most people are not attorneys and don't have the expertise to answer it, the normal person who disagrees doesn't know what to say.

Here is what the section (Section 1) of the 14th Amendment which same-sex marriage advocates say requires that we change the definition of marriage: "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."

As you can see it clearly states that same-sex marriage is the law of the land ... Oh, uh, wait a second, actually is says nothing about same-sex marriage.

First 14th Amendment Fail:
First, to reasonably assert this in the first place is to assume:
  1. That the plain meaning of the words of the 14th Amendment indicates it established authors of the 14th Amendment meant it to establish a right to same-sex marriage. And, if not, then
  2. That those who ratified it understood it to establish a right to same-sex marriage. And, if not, then
  3. That courts have traditionally interpreted it to apply to same-sex marriage (and even if this last one was true while the first two were false, it would be an judicially-invented right)
In fact, none of these is true. No one ever even conceived the 14th Amendment had anything to do with same-marriage--or with marriage at all--until the past decade when judges started inventing the right in order to comply with the political agenda of gay rights groups.

In addition, it is hard to find any supporter of same-sex marriage even willing to argue any one of these points despite the fact that they are necessary to establish their case.

Tomorrow, we will look at the two, not only false, but preposterous things you would have to believe to say that the due process and equal protection clauses of the 14th Amendment establish a "right" to same-sex marriage.

30 comments:

KyCobb said...

Martin,

I don't know where you went to law school, but that was a poor argument. You didn't even cite the case which establishes your test. As you know, since you quoted the 14th Amendment, it doesn't include a list of laws to which equal protection is applicable, or a list of laws which don't have to provide equal protection. It simply says, "the laws." That means all laws, including marriage laws. It doesn't matter if 19th century lawmakers or 20th century judges never thought about whether a particular law would survive an equal protection challenge or not. The 14th Amendment establishes the principle of equal protection, which is then applied to laws as cases are brought to the courts for consideration. Otherwise, any law enacted after ratification of the Amendment could freely violate equal protection since the drafters hadn't pre-decided whether the Amendment applied to that law or not.

Old Rebel said...

Martin,

You must be wrong. If there are boundaries on our government's power, that limits the good things it can do for us.

KyCobb said...

Old Rebel,

Actually the 14th Amendment limits the power of the government to discriminate. You want to give the government unlimited power to strip any citizen of their constitutional rights

Old Rebel said...

KyCobb,

You got it exactly backward. The 14th amendment effectively nullifies the Bill of Rights. Now DC can intrude anywhere in the name of promoting equality.

KyCobb said...

Old Rebel,

I see you have a truly bizarre worldview. The 14th Amendment doesn't nullify the Bill of Rights; it made the Bill of Rights applicable to state governments via incorporation. It is what prevents state and local governments from infringing on your precious 2nd Amendment rights.

Lee said...

> It simply says, "the laws." That means all laws

If I understand KyCobb correctly, what he's saying is that what matters is not what the framers of the 14th amendment thought they were saying, or what the states thought they were ratifying.

What matters today is how people like KyCobb construe what they wrote.

As for equal protection under the law, nobody ever said gay people can't marry. No doubt the 14th amendment protects the rights of gays to marry. They have as much right to marry as anyone else.

But we've flipped the meaning of marriage since the 14th amendment was framed, and are now holding the framers to our views, not the ones they thought they were affirming.

Old Rebel said...

KyCobb,

The point of the Bill of Rights was to set limits on the power of the central government.

Now that the 1st ten amendments have been all but nullified, we have a central government that claims the power to launch war on a whim, indefinitely detain citizens, and conduct domestic spy operations in open defiance of the 4th and 6th amendments.

KyCobb said...

Old Rebel,

Its been worse in the past. But I take it then you are cool with state and local governments passing extremely restrictive gun control laws. I ask, because other conservatives have been using that evil 14th Amendment to get local gun control laws invalidated.

KyCobb said...

Lee,

"If I understand KyCobb correctly, what he's saying is that what matters is not what the framers of the 14th amendment thought they were saying, or what the states thought they were ratifying."

No, they thought they were requiring equal protection of the laws; they wouldn't have written "equal protection of the laws" if that wasn't what they meant. So you look at laws which are challenged in court to see if they provide equal protection of the laws.

Lee said...

So, Ky, you're saying that the framers of the 14th amendment, and the signers, foresaw a day when people would turn the definition of marriage on its head, and were fully okay with that.

Close?

Lee said...

Like, they didn't have marriage laws in 1865?

KyCobb said...

Lee,

I doubt much of anyone even thought about the possibility of ssm in the 19th century. Very few people thought much about it until nearly the 21st century. But the courts don't analyze whether a law violates equal protection by trying to guess what people who have been dead for a century would've thought if they had ever thought about it. Instead, the court applies long established tests to determine if there is a good enough reason to discriminate against a class of people.

Lee said...

The issue is equal protection under the law only if you are granted your redefinition of marriage.

You assume that without debate and then argue from there forward that it's an equal protection issue.

We call that, begging the question.

KyCobb said...

Lee, that is how it goes. A man can get a license to marry a woman, but not a man because he's a man. And a woman can't get a license to marry a woman because she's a woman. That is gender discrimination, so you have to have an important government interest to justify it. Marriage is the same institution, just without the gender discrimination.

Old Rebel said...

KyCobb,

Then I'm sure you think North Carolina (and many other States) should repeal its laws against assault on a female. These laws mandate additional punishment if a male over the age of 18 assaults a female.

Blatant anti-male discrimination!

Lee said...

> That is gender discrimination, so you have to have an important government interest to justify it. Marriage is the same institution, just without the gender discrimination.

You refuse to deal with my point: it is only discrimination if we grant you your new definition of marriage.

Under the old definition, a gay man is of course free to marry a woman, and a lesbian is of course free to marry a man. No problem whatsoever with gender discrimination.

KyCobb said...

Old Rebel,

Why should a man get a lighter sentence for assaulting a man, or a woman get a lighter sentence for assault than a man would get?

KyCobb said...

Lee,

You don't get to assume away gender discrimination. If a law creates classifications based on gender, then those classifications have to be justifiable by something more than Webster's Dictionary. And if the Dictionary is going to be your basis for opposing ssm, you have already lost, because they now include ssm in the definition of marriage.

Lee said...

> You don't get to assume away gender discrimination.

Well, since you assumed it into existence regarding marriage, why the heck not?

> If a law creates classifications based on gender, then those classifications have to be justifiable by something more than Webster's Dictionary.

Something more authoritative is required then... like your opinion? But of course I never appealed to Webster.

> because they now include ssm in the definition of marriage.

To paraphrase Lincoln, if we look at a couple of men holding hands and say that one of them is the bride, then how many brides are there?

None. Men aren't brides even if we say they are. Nature is so unfair, not to be utterly arbitrary as regards sex.

And BTW, I don't think for a minute that equal protection under the law worries liberals one little bit. They talk like that when they want something. And when they want something else, they talk the Constitution in terms of being antiquated.

Old Rebel said...

KyCobb,

The laws against assault on a female are based on B-I-O-L-O-G-Y. Men are stronger and more aggressive than women, and therefore are punished more severely.

That thing I mentioned - biology - is not to be ignored.

Lee said...

Hey Old Reb,

Biology is unfair and has no place in the New Order.

Sincerely,

Lee

KyCobb said...

Old Rebel,

A lot of men are stronger than most women; all men are not stronger than all women. That's a biological fact.

Old Rebel said...

KyCobb,

So those laws are unfair and should be abolished, right? After all, they discriminate against men.

Lee said...

> A lot of men are stronger than most women; all men are not stronger than all women. That's a biological fact.

Enough men are stronger so that in many fields strength tests they give to men have to be adjusted downward for the women.

Another example of unequal treatment.

As an aside, I've been doing strength training for about two months at a local gym that's very "old school", with barbells and squat racks instead of machines. Those who are really into the culture, apparently, look down on the machines, as they might help you make specific muscles or muscle groups stronger, but not necessary make the whole *you* stronger.

(That's because strength is not just a function of muscle size, but also of the integration of your muscles with other muscles, bones, and your neurological system. Anyhow, take my word for it, bodybuilders are strong, but they're generally not as strong as many powerlifters who happen to be much smaller people -- if strength is defined by how much you can lift.)

There are lots of women who come to the gym. Some are into strength-training, as I am, others are into something called "cross-fit". The cross-fit women are easily the most aggressive women in the place. And the strongest are amazingly strong. Much stronger than your average sixty-year-old trombone player, for sure.

But the strongest woman in the gym runs the place. She's the manager. She's a lovely and helpful person and she claims she's only the ninth woman in history to bench 350 lbs. I believe her.

She's certainly stronger than me. There are, however, probably two dozen men in the gym who can do that. We have several who can bench 500. None of them are considered to be in the top 10 in history.

If you think women can be just as strong as men, then let's raise the strength criteria for women to what is required of men.

If you don't, then you really shouldn't be correcting Old Rebel, because that just means you want it both ways.

KyCobb said...

Lee,

You made my case for me. If that woman, who is stronger than you and a majority of men, assaulted you or another weakling like me, why should she get a lighter sentence just because she is female?

Lee said...

Then please don't tell me, Ky, tell our DA's, judges, and jurors. Women routinely get lighter sentences than men, from assault to statutory rape to murder.

Doesn't seem to bother too many liberals, though.

Old Rebel said...

KyCobb,

I'm forced to agree with you. Since there are some women who are stronger than some men, all the laws against assault on a female should be eliminated.

Next step: We eliminate all affirmative action laws since some minorities enjoy more advantages than Whites.

Now we're making progress.

KyCobb said...

Old Rebel, that is just silly. Assault is assault, and your sentence shouldn't depend on the sex of your victim. Affirmative action has already been practically eliminated.

Lee said...

I don't think Affirmative Action is in any danger. States keep voting it down, and colleges and government bureaus keep finding ways around dismantling it.

Old Rebel said...

Lee,

I've heard it's risky to tell a delusional person his imaginary world doesn't really exist. Let's just give KC some much-needed space.