Sunday, April 26, 2015

201.7 - Clown Award: South Carolina

Clown Award: South Carolina

Now for our other regular feature, the Clown Award, given for meritorious stupidity.

This week, the Big Red Nose goes to the state of South Carolina, which has filed what may be the most ridiculous brief yet among those submitted to the Supreme Court in the attempt by some states to maintain their bigoted rejection of same-sex marriage. Oral arguments on the case before the Court about same-sex marriage are to be heard on April 28.

In it's brief, South Carolina argues that the 14th Amendment - which guarantees "equal protection of the laws" to every "person" - was not intended to provide equal protection to every person. Specifically, it was not intended to have any effect on marriage laws. It "left marriage laws untouched," says the brief.

But in many states at the time of amendment's adoption, married women were not permitted to own property or enter into contracts; indeed, they had no legal existence apart from their husbands'. That was part of those states' "marriage laws."

Which means, according to South Carolina, the framers of the 14th Amendment explicitly preserved the rights of states to deprive a married woman of the ability to function independently from her husband.

Therefore, the argument goes, if the 14th Amendment permits discrimination against married women, if it provides no protection for married women, which is what South Carolina is claiming, it surely, the state contends, also allows for discrimination against same-sex couples who wish to wed. In fact, according to South Carolina, the 14th Amendment forbids only and solely racial discrimination, leaving states free to discriminate against women and LGBT folks - and assorted others - in any way they wish, so there.

If the issue was not so serious and immediate, this would be funny. Instead, it is just creepy.

The state of South Carolina: clown.

Sources cited in links:


northierthanthou said...

I'm so tired of original intent arguments anyway. when people field them, I can't help thinking thta I am looking at the equivalent of a child trying to explain that his hand isn't really in the cookie jar.

Lotus said...

An interesting footnote is that the original text of the first paragraph of the 14th Amendment specifically referred to, and thus limited its meaning to, race.

But Rep. John Bingham convinced the other drafters to broaden the language for the avowed purpose of having the "equal protection" apply to "any person, no matter whence he comes, or how poor, how weak, how simple — no matter how friendless."

Which means the argument that the Amendment only applies to race is demonstrably wrong.

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