Over at Red State (and let’s bracket for a moment why I was ever reading a blog called Red State that wasn’t about menstruation), a writer named Hogan blows a gasket over former conservative hero Ted Olson arguing persuasively for gay rights. That’s not really surprising—I expect many modern conservatives see Ted Olson as a kind of Judas figure, selling out his principles and nation and God in exchange for a few pieces of fame and fortune. It’s difficult to imagine that Ted Olson would find this attitude surprising or lose any sleep over it.
What’s more interesting is how Hogan constructs his legal opposition to Olson’s position.
Olson claims that California “has no rational basis for continuing this discrimination.” Really? No rational basis? Who made you King, Mr. Olson? Because it seems to me that we human beings may well have more than a “rational basis” to recognize marriage as it has been recognized around the world for literally thousands of years – the union of a man and a woman. For reasons of pro-creation and parenthood, to start with, but also for reasons of faith and morality, for some of us, any marriage other than such a union can never be, whatever society says, a “marriage” at all.
Mr. Olson hides behind – as any good activist does – the issue of race to use the Constitution for a larger social purpose and to achieve own policy objective. Olson invokes Loving v. Virginia, which was the case ending racial discrimination in marriage laws, to say that gays should be allowed to marry. If you believe that, then you believe that the 14th Amendment means anything. The 13th, 14th, and 15th Amendments were specifically designed to deal with racism and the prohibition thereof.
There are two separate claims here: one, that there is actually a rational basis for preventing gays and lesbians from marrying, and two, that the Equal Protection and Due Process clauses of the 14th amendment were intended to address racism, and shouldn’t apply to gays and lesbians anyway. It’s an argument whose structure you might recall from primary school—“I didn’t do it, you can’t prove it was me, and it’s a stupid rule anyhow.”
On the first point, Hogan wants to assert that tradition, faith, and morality, or at least some combination thereof, constitute rational bases for discrimination against gays. It’s an argument you hear a lot from fans of sectarian government—these reasons seem rational to them, so obviously if the courts fail to recognize it, it’s because the courts are a wing of a liberal anarcho-queer supremacist movement which has as its aim the annihilation of heterosexuality, families, and liberty in general.
Actually, this is his strongest point.
Courts are generally somewhat conservative, and consider tradition and morality—if not someone’s particular, sectarian religious beliefs—to be acceptable bases for legal intervention in our lives. Acceptable, that is, but certainly not sufficient, and that’s where this line of reasoning sadly falls apart. When you’re abridging someone’s rights, the courts have found, you need to be able to conjure up some slightly more compelling reason than, “it has always been thus, so there.” This was an important finding in Loving v. Virginia (and, later, in Williams v. Illinois) —prohibitions on interracial marriage may have had the support of tradition and church, but they weren’t rational. In fact, they were pointless. And even as the courts seem willing to smile on even poorly supported encroachments on liberty, they’ve found unsupported violations will have to go. And so they went, some of them.
But! That’s Loving, a case about interracial marriage. The 14th Amendment, Red State reminds us, is specifically crafted to apply only to people of color. That was the obvious intention of its framers, and absolutely the only reason we think its application might be broader than that today is because the power-mad judiciary has over the years stretched the tiniest of loopholes into an enormous tear in the very fabric of the Constitution. Why, just look at the wording of the thing:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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. —14th Amendment, Section 1
The text certainly seems to… resist the interpretation that it only offers protection against racial discrimination. In fact, it looks rather more like a broad-reaching law designed to force States to respect the rights of their citizens.
All their citizens.
If the framers—John Bingham, specifically—had intended for the 14th Amendment to apply specifically to institutional racism, it’s not as though they lacked the tools to call it out. The 15th Amendment, passed just two years later, does exactly this:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. —15th Amendment, Section 1
No man may be denied a vote because of the color of his skin, nor because he was once a slave. (No man and his skin, specifically, because of course it would remain illegal for women to vote for fifty years hence, until the 19th Amendment was ratified. It had to be another amendment, because the 15th is silent on the issue of gender in exactly the way that the 14th is not.)
All their citizens. Everyone.
That’s what Bingham meant; that’s what the Congress meant. Hewing to a strictly originalist view of Constitutional law, you might be surprised to read Bingham’s congressional testimony, in which he makes quite clear his intention that the 14th Amendment be a broad thing, a powerful instrument of justice, protecting citizens (All citizens. Everyone.) from the capricious decisions of governmental bodies large and small. In fact, he seems to argue for an even broader reading of the amendment than courts recognize today.
So where does the Red State writer’s interpretation come from? In a blossoming of what I’m tempted to term delicious irony, it comes from an activist judge—five activist judges, specifically. Not five years after its passage, the Supreme Court decided in Slaughter-house cases that the 14th was a response to racism—specifically, to lasting discrimination against former slaves—and so it oughtn’t be applied more broadly than that. So it wasn’t, and for years, the amendment may as well not have existed.
Today, essentially nobody believes that Slaughterhouse was decided properly. In the intervening years, the courts have slowly restored the power of the 14th, building a multi-tiered (and, arguably, overcomplicated) framework under which different laws are considered with different degrees of scrutiny, based on the significance of the rights abridged and the oppression experienced by the class of people it targets. This isn’t a power grab—it’s entirely the opposite, a moderation of the judiciary’s power, rooted in the notion that courts ought to be a last resort for those peoples too maligned, stigmatized, or powerless to seek legislative remedy.
It’s this last point that gives lie to the slippery slope argument we’ve heard so very often—this notion that if you believe the arguments for gay marriage, “you believe that the 14th Amendment means anything.” Yes, the courts have found that gays and lesbians constitute a suspect class, and that abridgment of their fundamental rights must thus be narrowly tailored to satisfy a compelling government interest which cannot be satisfied in any other way. But it only found this—could only find this—after being buried under an avalanche of evidence in which the plaintiffs exhaustively and somewhat oddly argued that gays and lesbians are politically powerless and biologically locked into their sexualities (leaving the sectarian proponents to argue that no, gays have enormous political power and their sexualities are fluid and constructed, making me wonder if they intersperse Butler in their sword drills). It seems enormously unlikely that we’ll see similarly compelling arguments for marrying cats or children, neither of which can offer legal consent.
The evidence is so overwhelming that should Perry make it to the Supreme Court, it will be exceedingly interesting to watch Antonin Scalia tie himself into a pretzel trying to justify ignoring it. Perhaps he will decide that the 14th Amendment really is all about the rights of ex-slaves, pesky things like the framers’ intentions and thousands of pages of jurisprudence notwithstanding. Or perhaps, seeing his very own words quoted in Judge Walker’s decision, he will become radioactive with indignation, and he will explode.
If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct… what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. —Lawrence v Texas, 539 U.S. 558 (2003), Antonin Scalia Dissenting