Do you honestly believe the authors of the 14th Amendment believed they were requiring states to treat women equally to men? Gays equally to straights?

Do you honestly believe that the legislators who voted for the Amendment believed that?

Do you honestly believe that the voters who elected the legislators believed that?

Do you believe that our government should be a democratic republic? Or do you think it should be a “judicial” dictatorship / oligarchy?

If you believe the latter, I have nothing more to say to you, because such a belief would mark you as a worthless human being.

If you believe the former, then you must believe that things only get added to the Constitution by “We The People”. If the people who added something to the Constitution “didn’t realize it was there”, then the best way to understand the situation is that it isn’t there.

Now, as I’ve mentioned previously, while the people of the time clearly thought that “separate” and “equal” were both possible, what they added to the Constitution was “equal” with respect to “race”. Since they added that, we get the consequences of that.

Why should “We The People” get the “consequences” of something that no democratic majority decided to inflict upon us? Just because you want it, Herr Dictator?

Not at all clear where you think you’re coming from. Bork has convinced me that “original understanding” is the correct way to interpret Constitutional text. IOW “what did The People” think that the Amendment meant when it was passed.

Ok, let’s take one example: do you honestly believe that the authors of the 14th Amendment didn’t believe that anti-miscenegation laws were constitutional? I’d like to see you make that case beyond a very small handful of radical abolitionists. This amendment never would have been passed in the North if this part of package and you know it. They had what to them was a perfectly constitutional reason for these laws that was in no way conflicting with the 14th Amendment. Yet which amendment was cited a century later in abolishing such laws? Why the very same one. Again, I personally have no problem with this but given your reasoning here I must ask once more: what happened to original intent and strict constructionism?

If the 14th Amendment could be validly interpreted to deal with sex discrimination issues, there would have been no need, at all, for the 19th Amendment. Yet, there it is. Why? Because people like adding totally unnecessary Amendments to the Constitution?

No, because at the time SCOTUS didn’t buy Susan B. Anthony’s argument that the 14th covered this as well. It does now of course and has the 19th as well.

Or because the 14th had nothing to do with sex discrimination, or anything else besides discrimination based upon skin color?

Thank you, you’ve just made my argument for me. By your “original understanding” anti-miscenegation laws are valid as is segregation, neither of which were addressed by the 14th Amendment. Neither were addressed at all by this amendment and it was only MUCH LATER they were incorporated in. This was done in a way it should be obvious that that would have shocked the authors of this amendment. So much for “original understanding”.

For religion, it’s because of the First Amendment and the logical fact that the religion of the two people involved has no effect on the primary purpose for which the state privileges marriage — the production and raising of a couple’s own children.

Surely you jest? Putting aside that you are repeating yourself by citing the First Amendment, which I’ve already addressed, can you honestly say that conflict in the religious backrounds of the parents has no effect on the institution of marriage let alone the children that may be produced? I don’t recall if such were ever legally prohibited in our history, but they certainly have been in Western tradition.

For race, it’s because of the Thirteenth, Fifteenth, AND Fourteenth Amendments, both of which create the same general prohibitions against discrimination based on race that the First does for religion.

Again you repeat yourself, though interestingly add the 13th & 15th Amendments. I personally have no problem with your overall argument against anti-miscenegation laws but this interpretation of these amendments differs greatly from their authors. You do recall original intent and strict construtionism, right? This is the one detail you keep failing to discuss, i.e. that a later view of all that these amendments address was written in place of the original.

For gay marriage, neither that legal underpinning or that primary purpose exist.

Now you are touching on it. So are you saying then that the State has a compelling interest in preserving marriage to only heterosexual couplings which produce offspring? If so, that is where your argument needs to rest and not all this other stuff. As I said before, none of our rights guaranteed by the Constitution are without limits so feel free to make a case that will withstand judicial scrutiny. Just screaming about judicial activism will not take you but so far when our history is filled with such that have produced good along with the bad.

Not at all clear where you think you’re coming from. Bork has convinced me that “original understanding” is the correct way to interpret Constitutional text. IOW “what did The People” think that the Amendment meant when it was passed.

Now, to consider one of your earlier comments:
Why do we need one? I wish I could find the reference, but Susan B. Anthony made a great argument that this is covered by the 14th Amendment which refers to “persons” and “citizens” without respect to sex thus rendering further amendments unnecessary. Obviously her reasoning wasn’t accepted until about a hundred years later.

Amendment 19
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 sex.

If the 14th Amendment could be validly interpreted to deal with sex discrimination issues, there would have been no need, at all, for the 19th Amendment. Yet, there it is. Why? Because people like adding totally unnecessary Amendments to the Constitution?

Or because the 14th had nothing to do with sex discrimination, or anything else besides discrimination based upon skin color?

There is another reason to vote against prop 8 that I have not heard to much about. Sharia Law is already weaseling it’s way into the west. And if you think US law is anti-gay Sharia Law will push gays not into the closet but into the grave. Any law or lack thereof that functions as a trip wire alerting the populace to Sharia Law encroachment is fine by me. Kind of like the enemy of my enemy is my friend. Since I do not see gay people as enemies though some people do and I know they will be enemies of Sharia Law and that makes them friends, in my case doubly so (gays are not the enemy, repeata for favore).

Vote NO on prop 8!

Lan astalem,

GoingThere

For religion, it’s because of the First Amendment and the logical fact that the religion of the two people involved has no effect on the primary purpose for which the state privileges marriage — the production and raising of a couple’s own children.

For race, it’s because of the Thirteenth, Fifteenth, AND Fourteenth Amendments, both of which create the same general prohibitions against discrimination based on race that the First does for religion. Next is the logical fact that the race of the two people involved has no effect on the primary purpose for which the state privileges marriage — the production and raising of a couple’s own children. Miscegenation laws were based on the outdated premise that the mixing of races produced an inferior product.

For gay marriage, neither that legal underpinning or that primary purpose exist.

I also hear that ACORN has registered the eight year old hispanic girl to vote, like, 20 times….

Ha!

Yep. Which was why, at the time, Plessey was a reasonable ruling.
However, as Bork pointed out in The Tempting of America, while the people who approved of the 14th Amendment apparently didn’t see a conflict between “separate” and “equal”, they wrote “equal” into the Constitution. Which is why proof that “separate but equal” wasn’t was sufficient to kill it.

Remarkable, even more so since you reference Bork. What happened to “strict constructionalism”? So like liberals, conservative jurists feel free to ignore the original intent of the text and impose a different meaning? I can understand how Bork would be loathe to appear to argue in favor of segregation, even if that were not his intent, but what we have here is his adopting a LIBERAL method of interpretation for expediency and attempting to give it a thin veneer of conservative covering. As for “separate but equal” it may have been mandated by law but was actually never seriously tried. Instead this was used as an excuse to give non-whites substandard facilities and unequal treatment, even though “separate”. So what you are telling me is that instead of the Court requiring schools to provide equal facilities for non-whites, which it had not done, it was free to ignore the original intent and essentially re-write the Amendment cited?
It boggles the mind how much conservative AND liberal folks do mental gymnastics to defend their point of view rather than be consistent on some things. I’m not exactly pointing fingers here because I’m guilty of this too. In the case of “separate but not equal”, I’m fine with the results since ultimately segregation is antithetical to what we today hold to be American ideals regardless of the intent of the Founders or authors of the 14th Amendment.

Because We The People are sovereign. If we (or our predecessors) didn’t put it into the Constitution, then it’s not there. If ti’s not there, then we get to decide what the law should be, not some oligarchy.

You’ve just said that the Courts are free to ignore the will and intent of the People, at least when it comes to things that We The People today consider repugnant like segregation. What is different here? We The People established a system wherein our will is expressed through the Legislature, not through polls, and the Judiciary interprets our basic governing document. If the People do not like how the Judiciary is performing its job, they are free to abrogate the Constitution and start over, which of course means revolution/civil war, or work through the established process and reform it.

But again, John, you try to argue that marriage is a basic right that is guaranteed to all and that the majority cannot take away; therefore, you are saying that the state has no right whatsoever to limit marriage and that any refusal to extend marriage to anyone who asks for it is an unconstitutional violation of rights.

Actually, that was the argument of SCOTUS in Loving vs. Virginia. I agree with that reasoning but none of our rights are free from limits when the state has a compelling interest in imposing them. The latter is what is being disputed here in the case of same-sex marriage. In the absence of compelling interest, the state has no such power to limit this right.

Again, if you are going to take the position that the State can impose restrictions as it sees fit onto marriage than why are anti-miscenegation laws and those prohibiting interreligious marriages unconstitutional?

The latest Protect Marriage Yes on 8 television ad in California shows an incredibly cute 8 year old Hispanic girl bringing the book King and King home to her mother saying “Guess what I learned in school today. . . I can marry a princess!”

That’s gonna leave a mark.

But again, John, you try to argue that marriage is a basic right that is guaranteed to all and that the majority cannot take away; therefore, you are saying that the state has no right whatsoever to limit marriage and that any refusal to extend marriage to anyone who asks for it is an unconstitutional violation of rights.

The Thorons and other families like them would probably make better ads. Real men and women not only addressing the problems other real people will face should Prop 8 win, but going after the idea that Prop 8 will somehow protect their heterosexual marriages from all of the pressures that cause them stress and failure.

Yet this understanding did NOT include segregation, which was in place both North and South prior to, during and AFTER the Civil War.

Yep. Which was why, at the time, Plessey was a reasonable ruling.

However, as Bork pointed out in The Tempting of America, while the people who approved of the 14th Amendment apparently didn’t see a conflict between “separate” and “equal”, they wrote “equal” into the Constitution. Which is why proof that “separate but equal” wasn’t was sufficient to kill it.

Me: When was it that the US, or even CA, passed a Constitutional Amendment understood by the voters to be preventing discrimination based upon sex?

You: Why do we need one?

Because We The People are sovereign. If we (or our predecessors) didn’t put it into the Constitution, then it’s not there. If ti’s not there, then we get to decide what the law should be, not some oligarchy.

But, if marriage is not a constitutionally-guaranteed right, then the expressed will of the voters is sufficient to constitute a compelling interest.

This is essentially academic as long as the Loving decision is in place, since part of the ruling finds that marriage is a “fundamental right” that the state must have a compelling interest in denying. However, if we take the above line then it is incumbent to answer what the limits are, if any, in your view. Are anti-miscenegation laws okay under the Constitution again? Can marriage between people of differing religious faiths, or where one potential spouse holds no faith, be banned if a majority choose this? Etc. I realize that someone might cite the First and Fourteenth Amendments to defend the current status for both these case, but that is no different than denying both amendment protections to same-sex marriages. After all, a white person isn’t discriminated against by being denied marriage to a black person. They can always marry someone of their own race. A Catholic isn’t discriminated against by being denied marriage to a Sikh. They can always marry another Catholic. There is so much tyranny of the majority that is packed into this that it makes “rights” guaranteed by the Constitution meaningless.

The state does not exist independently of the voters; that is the whole point of the “We the People” that leads off the US Constitution.

Indeed. Part of that is that there are certain basic rights guaranteed to us all that the majority cannot take away.

What is trying to be argued here is that the people have no right to vote and make decisions on their own constitution and their own laws because their end result is inconvenient.

No, what is being argued is that the people do not have a right to vote unequal protection and access under the law since this violates the Constitution. Now you can argue that the use of this is flawed when applied to same-sex marriage and that’s certainly up for debate, but don’t mischaracterize what the real disagreement is.

But, if marriage is not a constitutionally-guaranteed right, then the expressed will of the voters is sufficient to constitute a compelling interest.

The state does not exist independently of the voters; that is the whole point of the “We the People” that leads off the US Constitution. What is trying to be argued here is that the people have no right to vote and make decisions on their own constitution and their own laws because their end result is inconvenient.

will the people who are saying exactly that please state that the state has no right whatsoever to limit marriage in any respect and that marriage licenses must thus be granted to pedophiles and the children they “love”, polygamous people and the multiple individuals they “love”, and incestuous individuals who “love” each other?

Who said that the state has “no right whatsoever” in limiting marriage? The argument here is that the state has no compelling interest in refusing to allow same-sex marriages, not that any and all limits are unconstitutional. Now you can argue that the does has such an interest and people can dispute either way, but don’t turn this into an absurd argument that isn’t being made. The most obvious tired example you give here is pedophiles marrying children, the latter of whom are incapable of granting consent under the law.