Does Fourteenth Amendment back gay-marriage challenge?

By Taylor Batten

The Charlotte Observer

With the U.S. Supreme Court set to hear arguments in a landmark gay-marriage case this month, South Carolina has inserted itself in a most bizarre way.

The court will hear two and a half hours of arguments on April 28 in cases involving gay marriage bans in Ohio, Michigan, Tennessee and Kentucky. Legal experts widely expect the justices to establish same-sex marriage as a right nationwide.

South Carolina Attorney General Alan Wilson and his team this month filed a “friend of the court” brief. An amicus curiae, as it is known, allows an outside party to chime in with its two cents.

Supreme Court rules say such a brief that highlights “relevant matter” not dealt with by the parties to the case “may be of considerable help.” I’m not so sure South Carolina meets that aspiration.

The high court has framed the central question of the case as: “Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?”

Wilson’s argument in a sentence: The framers of the Fourteenth Amendment were OK with the states discriminating against women, so surely they’d be OK with us discriminating against gays.

The Fourteenth Amendment was adopted in 1868 in response to the treatment of former slaves following the Civil War. It says, in part: “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.”

‘Family unity’ protection

Wilson argues that the person or persons who wrote those words in 1868 certainly hadn’t entertained the idea that they could apply to gay marriage. And he says the authors allowed the states to keep their laws that then discriminated against married women (which supposedly protected “family unity”).

“Indeed, the framers insisted upon leaving untouched those state laws depriving women of basic rights upon marriage to a man,” the brief says. “Surely then, those state laws exclusively defining marriage as between a man and a woman were hands off under the Amendment’s original meaning.”

Wilson grants that “to some, (the framers) views might now appear outdated,” and such discrimination against women is no longer tolerated. But still: “While no one could reasonably argue that those disabilities are constitutional under this Court’s more recent decisions, the framers’ insistence upon maintaining them vividly illustrates their intent to ensure that state marriage laws are virtually the exclusive province of the states.”

Wilson cites several cases from the 1800s upholding discrimination of various kinds and saying marriage is primarily about procreation. In some instances, he concedes that those rulings have since been repudiated. Even so, he uses them to justify today’s discrimination against gay people.

The Fourteenth Amendment’s framers insisted upon the subordination of married women, the brief says. “With this in mind, they did not, by any stretch of the imagination, contemplate that same-sex marriage was required by the Amendment or its Due Process Clause.”

At least three times Wilson acknowledges that the Supreme Court’s decisions pertaining to the Fourteenth Amendment have rejected this originalism argument. This time, he says, should be different. Why? Because marriage was long thought to be between a man and a woman.

The amendment’s authors may have been focused on race, but they nevertheless articulated a broad principle about universal equality. I hope and expect the high court will give South Carolina’s brief all the weight it deserves, and no more.

Taylor Batten is editorial page editor of the Charlotte Observer. Distributed by Tribune Content Agency, LLC.