Mr. Franks’ latest comment is so erroneous I could not in good faith post it without correcting much of his misinformation. And I wasn’t comfortable just discarding it.
So here it is, in its entirety, in italics, with my response. It’s here for my readers edification; I see no point in continuing the discussion with Mr. Franks, though I wrote this as if he were a reasonable man.
Well, I do not see the relevance in the fourteenth amendment in the “right” of marriage. No place in the Constitution or Bill of Bights specifically or precisely states that Marriage of any kind is a Right granted to anyone.
So, My comment was entirely correct.
No, you are mistaken. First, I did not claim a right to marriage. (One does seem inherent in the “pursuit of happiness” doctrine of the Declaration of Independence though, doesn’t it?)
But more on point, the Fourteenth Amendment specifically says, “No State shall … deny to any person within its jurisdiction the equal protection of the laws.” That means, for example, that no state can enable Ford owners to register their trucks but deny Chevrolet owners the same privilege. The due process clause will soon come to mean also that no state can enable some persons to choose their spouse but deny others the same privilege. That is inherently unequal and therefore unconstitutional.
To deny equal protection, the state must have an over-ridding public purpose. Denying same sex marriage is no more of an over-ridding public purpose than denying inter-racial marriage was. And the court ended state bans on inter-racial marriage 43 years ago.
If I recall correctly:
The fourteenth was specifically written for black people allowing them to be recognized as legal American Citizens. Giving them the Right to be Americans.
It has little if anything to do with anything else. It was never intended to do anything else. This Applies to LIFE, LIBERTY and PROPERTY. Apply it how you wish but the facts are the facts Sir.
No, you are mistaken. Whatever its origins, whatever the intentions, the due process clause of the Fourteenth Amendment has been applied to many issues beyond race. In addition to Brown (school segregation), the 14th amendment due process clause has been used in Gideon (right to counsel), Miranda (right to be advised of your rights), Griswold (right to contraceptive devices) and Roe (right to abortion), among others.
You may not like these rights, but that doesn’t mean the Fourteenth Amendment wasn’t applied in winning them.
“nor shall any State deprive any person of life, liberty, or property, without due process of law;” This means each state has the right to legislate marriage ie. due process of law. Which in fact most do.
The language you quote does not grant the states any rights. It limits the states. But, in any case, I am not saying states cannot legislate marriage statutes. I am saying the Constitution requires that the states provide equal protection when they do.
It is highly unlikely that the amendment will be applied to Marriage Gay or any other kind.
No, you are mistaken. The due process clause was key to the argument to overturn California’s Proposition 8 in the recent trial. My point yesterday was that “ultimately” the courts and legislators will apply the Fourteenth Amendment to state marriage laws.
As far as I am aware there is no Federal Law against it now.
But hey that’s just me I suppose.
Once again you are mistaken. There is a federal law, the Defense of Marriage Act (DOMA) 1 U.S.C. § 7 and 28 U.S.C. § 1738C. DOMA says no state has to recognize marriage of same sex partners in another state, and defines marriage for the federal government as a legal union exclusively between one man and one woman.
The first portion is clearly unconstitutional under Article IV, Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” The second part is unconstitutional under the federal due process clause in the Fifth Amendment.
The courts will get there. One federal court (Reagan appointee) ruled DOMA unconstitutional last week.
Great point though.
Indeed. For those tired of waiting I am sorry, but you can feel better I think knowing that, as the Rolling Stones sang, “time is on my side.”
That the 14th Amendment was written to facilitate the freedom of the slave is one of those Original Intent arguments that misses the point entirely. The goal of the framers — and of the amenders — was not to freeze us in a pre-industrial agrarian society. The Constitution lays out principles, and those principles are applied to a changing world.
The principle that all citizens should be treated equally under the law, in retrospect, seems obvious. Still, it was not specifically enumerated in the original Constitution in large measure because getting the Constitution passed — and holding the United States together — required an accommodation of slavery. Even though the principle was pretty well understood (“all men are created equal”) it couldn’t be codified because some, at the time, were only created 3/5s equal.
Once that principle is written into the language of the Constitution, it is applied in all kinds of places. Mr. Franks may say it applies nowhere else, but it is applied all the time, both explicitly and implicitly. A couple of years ago it was applied (along with the Commerce Clause) in Granholm vs. Michigan, a case involving the shipment of wine directly to consumers.
Again, Mr. Franks is probably correct when he says the writers of the amendment were thinking about the rights of freed slaves. He may prefer a kind of Ouija Board judiciary that spends its time trying to divine the intent of people long dead, instead of looking directly at the language those people handed down to us. That would have the effect, in this case, of enforcing his prejudices. It would have the effect, overall, of freezing us in the sensibilities of an era 200 years gone.
Leave it to TJ to bring wine into this discussion. Bravo!