[derosa8]

With the Supreme Court now getting ready to hear a case that could potentially lead to them striking down state bans on same sex marriage, I have a question on constitutionality.

It seems the bulk of the case will come down to whether a right to a same sex marriage falls under the equal protection clause of the 14th amendment. Do you think the original meaning and intention of the amendment is consistent with the Feds striking down a state ban or not?

My gut tells me it would be completely against the federalism our founders designed for the Feds to strike down such a law. However, even Raoul Berger notes that the amendment, which corresponded closely to the Civil Rights Act of 1866, sought to secure fundamental rights which are the essence of civil freedom: the right to inherit, to make and enforce contracts, and purchase property [Federalism: The Founders’ Design p. 160-161].

Would the view of marriage as a contract between two individuals allow same sex marriage protection to sneak into the 14th amendment?

I would welcome any response to these questions, specifically if Dr. Gutzman or Mr. McClanahan want to chime in as we anxiously await their course on the Constitution.

[gutzmank]

Here we see the validity of the Supreme Court majority’s concerns in Slaughter-House about the vagueness of the 14th Amendment. All legislation classifies, and thus treats people differently. If we understand the Equal Protection Clause as divorced from the concerns that yielded it, we elevate the Supreme Court to the position of Grand Censor of American Legislation. Since 1954, that has been the direction in which federal courts have headed.

As I understand it, the argument is tantamount to saying that allowing women to marry men while disallowing men to do so is iniquitously to deny those men equal protection. The problem is that we have no way of saying where this principle should cease to be applied, and so all we can do is gaze on in wonder as The Nine work their will.

It must be facetious to ask what this means regarding federalism. Truly.

[derosa8]

Thanks for your response Dr. Gutzman.

How ought we to understand the equal protection clause? And how might we argue that this original understanding does not permit the Feds to strike down a state ban?

I bring this up because the AP Government and Politics teacher at my school is having his students role-play the case (they will be the judges, the attorneys, etc.). I want to help the students on the side of the States understand that they have a strong case if we are to take the constitution seriously.

[gutzmank]

I highly recommend that you consult Raoul Berger’s GOVERNMENT BY JUDICIARY for elucidation of this subject. He devotes extensive attention to it. If you want more than that, see Labbe’ and Lurie’s book on Slaughter-House, which I reviewed here:

http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/Labbe-Lurie104.htm.

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