Ya gotta hand it to South Carolina: they really have chutzpah. South Carolina is arguing in an amicus brief against same-sex marriage to the Supreme Court (linked below) that the XIV Amendment (equal protection), in an originalist interpretation, prohibited discrimination based on race (thus miscegenation laws under Jim Crow were unconstitutional). Under the marriage laws at the time, women had no rights (and thus that argument could be used against same-sex marriage as gays also had no rights).
My arguments for same-sex marriage have always been "I need to hear a secular reason why it should be banned, not a religious one." Well, it appears that South Carolina obliged me. Wow.
More below the wadded up unpassed Equal Rights Amendment.
Historically, South Carolina is correct. Women did not have the same rights as men when the amendment was written (they did not have a legal existence beyond their fathers or husbands), and there were arguments in Congress about whether the proposed amendment would overthrow state marriage laws. The consensus in the XIX Century was it would not.
Quoting Freethought Blogs on the matter:
“In a jaw-dropping amicus brief [link goes to text of brief] recently filed with the Supreme Court, the state’s attorney general argues for a truly originalist understanding of the 14th Amendment, insisting that the Constitution permits discrimination not just against gays, but also against women. This argument is as morally abhorrent as it is historically accurate.
“Here’s the gist of South Carolina’s fascinatingly sexist argument. The state wants to prove that the 14th Amendment—which guarantees “equal protection of the laws” to every “person”—was not intended to displace state marriage laws. And what did those laws look like at the time? One major feature: In many states, married women were not permitted to own property or enter into contracts and had no legal existence apart from their husbands. According to South Carolina, the framers of the 14th Amendment explicitly preserved the rights of states to deprive married women of the ability to function independently from her husband. This right to deprive married women of basic liberties, South Carolina argues, is enshrined in the 10thAmendment and is not at all undercut by the 14th Amendment’s guarantee of equality.
“The crux of South Carolina’s brief, then, is this: If the 14th Amendment permits discrimination against married women, it surely also allows discrimination against gay people who wish to wed. In fact, according to South Carolina, the 14th Amendment forbids only racial discrimination, leaving states free to disadvantage women and gays in any way they wish.”
In an update:
“April 9, 2015: The South Carolina solicitor general, as well as a representative from the office of the attorney general, have asked us to note that their state does not wish to implement the sexist laws outlined in its brief—though it could if it wanted to.”
That is nice to know. For now, the state does not wish to implement sexism.
The full analysis of this fascinating amicus brief is available at Freethought Blogs.
https://freethoughtblogs.com/...