Thursday, May 15, 2008

The California Ruling and the Presidential Election

A few hours ago, the California Supreme Court ruled that the California Constitution protects the right of same-sex couples to marry. I haven't read the entire opinion yet, but it's crystal clear from what I have read that the Court relied only on the California Constitution, and not the U.S. Constitution. Because state high courts are the final authority on the meaning of state law---including state constitutional law---there is no way this case will go to the U.S. Supreme Court. The federal issues it raises involve what respect other states will owe California same-sex marriages (in light of the federal Defense of Marriage Act and the Full Faith & Credit Clause of the federal Constitution's Article IV), but those issues are not present in this case, and are no different from the ones raised by the Massachusetts ruling in Goodridge in 2003.

Apparently one can't (yet) be a serious candidate for President and say that one thinks same-sex marriage should be legal, but I'm not running for any office and so I'll say it here. Indeed, I'll go further and say that the Equal Protection Clause of the Fourteenth Amendment, best understood, forbids states from denying same-sex couples the right to marry for the same sorts of reasons that it forbids states from denying inter-racial couples the right to marry. As far as I'm concerned, the arguments advanced against same-sex marriage conflate religious and civil recognition of marriage or rely on ugly and false stereotypes of gay, lesbian and transgendered persons. The best that can be said for these arguments is that they typically are not arguments at all but stipulations: "Marriage is defined as the union of a man and woman" is no more an argument than is "marriage is defined as the union of a man and woman of the same race." It's the very definition that equality proponents challenge, and so reasserting it doesn't meet the objections.

Nonetheless, many hard-working Americans apparently disagree with me and the rest of the egghead class on this point, and that itself might be a reason for courts to go slow. Justice delayed may be justice denied, but justice rushed could be backlash accelerated. A state or U.S. Supreme Court Justice who said something like the following would be making a respectable point: "In my view, it's clear that prohibitions on same-sex marriage violate core principles of equality, but my conception of equality must be informed by the people living in the society around me, and those people are comfortable with discriminating on the basis of sexual orientation with respect to marriage." I'm not saying I would agree with such a ruling. I wouldn't. But it would be vastly preferable to an opinion actually rationalizing laws that deny the right to marry to same-sex couples. (Having skimmed the dissent in today's case, I can say that it's somewhere in between.)

But I digress. It would be more than a shame if the American people again became enflamed by this issue again, which may explain the Democratic strategy of waffling. Here's what Senator Obama said when he voted against a proposed constitutional amendment banning same-sex marriage:
I personally believe that marriage is between a man and a woman. But I also agree with most Americans, including Vice President Cheney and over 2,000 religious leaders of all different beliefs, that decisions about marriage should be left to the states as they always have been.
That was actually the same position that Senator McCain took: It's up to the states. He said:
The constitutional amendment we're debating today strikes me as antithetical in
every way to the core philosophy of Republicans. . . . It usurps from the states a fundamental authority they have always possessed and imposes a federal remedy for a problem that most states do not believe confronts them.
Let's see how long this consensus that the definition of marriage is a matter for state law lasts.

Posted by Mike Dorf

31 comments:

Sobek said...

"Furthermore, in contrast to earlier times, our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation..."

Except that the state recognized precisely the opposite when it passed a law forbidding gay marriage.

Again I wonder, how can a right be "fundamental" which did not exist yesterday? You can't argue that it has become fundamental with the passage of time and evolving social standards, because social standards are defined by the voters who the Court is flipping off with its decision.

Mithras said...

So, you're suggesting that, like in the Loving case, courts should wait until a majority of state legislatures sanction same-sex marriage before striking down the bans in the states that don't? It's like a bank only lending money to wealthy people. I thought civil liberties as enforced by courts protect minorities who couldn't avail themselves of protection through the political process.

Hamilton said...

In response to sobek, the statement that the right "did not exist yesterday" is a silly one. Would you say that the right to not discriminated on the basis of race is not fundamental? Or that it wasn't fundamental the day before (or the day after) Brown?
Any right we have did not exist at some point, the fact that it hasn't always existed isn't a valid argument that it shouldn't be recognized by courts.

Adam P. said...

Sobek, unfortunately your logic goes against the entire principle of judicial review. Just because a legislature votes for a law and passes it does not determine if it infringes upon a right. The state had laws in tension: an equal protection principle, and a differential treatment principle. When a constitution and a voter initiative conflict,
Also, the speed and regularity with which California voters pass such legislation hardly is a ringing endorsement of the state having ¨spoke¨.
State courts rule state laws invalid every day. Thus, every day the state of the law is different than the day before. That doesn´t mean the Constitution was any different.

I havent read the whole op yet, since im in a cabineta in mexico, but I would flag Justice Corrigan´s dissent as quite the problematic one-- agreeing there is a right to not have marriage denied based on the gender of the partners, BUT she thinks the Court should wait for the political process to catch up. It´s rare to see this kind of candor- usually courts will employ justiciability or other tactics to avoid deciding a case if they think the correct answer is one the polity isnt ready for. This raises the question, of course, of whether to go against what you believe is the correct interpretation of the law is an abdication of a judge´s duty.

Adam said...

There's a bigger, cultural problem here that liberals just don't see when they think about gay marriage. If you look to Europe today, the birth rate is far below replacement rate because young Europeans perceive the nuclear family as merely another lifestyle choice, and to many, not a particularly palatable one. They have lost any connection that Europeans once had to their cultural heritage and so they feel no motivation to keep that cultural heritage going. The result is a declining population and a continent that will in a century or so be overrun by Muslims who still do care about their culture. The United States is not in such dire straits only because it still has a substantial religious population who still have lots of kids. When liberals cavalierly assert that we should do away with thousands of years of Western tradition in which homosexuality, let alone gay marriage, has been considered a social taboo, they don't realize that they are undermining the social fabric on which the future of our country depends.

Mithras said...

Not just unnatural, but dhimmi too!!1! Thanks for the laugh, Adam.

Jamison Colburn said...

In reply to Sobek, the answer is simple: "the state," where the Supremacy Clause and precedents such as Michigan v. Long are concerned, refers to the entirety of a state's legal agency -- not just its legislature, not just it's governor, nor even just one of its independent agencies. It includes everything that generates the subnational legal output. Here that includes its constitution and the court of last resort interpreting the state's constitutional tradition. "Flipping off" voters is only the necessary implication if one ignores the voter-created independence in the judiciary (however slight it might be in many states) that most state traditions still nurture in some small respect. If you're going to lionize the states when they do things like try to cut off welfare benefits (1970s), then suck it up now for crying out loud.

Brian K. said...

adam,

i fail to see how denying people the right to form a stable nuclear family will increase the number of nuclear families in the US.

perhaps it is perceived as "just another lifestyle choice" because that is how the religious right portrays it? if only certain people with a preferred lifestyle can get married, then only people who choose that lifestyle will get married. in other words, by tying it to only certain special groups of people the religious right has made marriage into a vehicle for discrimination rather than an universal stage in an american's life.

but i do have to give you credit for your strained attempt at tying the "defense" of marriage into the war on terror. it was one of the most ridiculous things i've read today.

Tam Ho said...

The only interesting aspect of the gay marriage issue is the sociology of how a society that is in many other respects intellegent and sophisticated can engage itself in a "debate" where one side has no argument whatsoever that comes close to passing the red-face test.

The arguments against allowing gays to marry are so self-evidently fallacious that watching intellingent people dignify them with responses on the merits is itself painful, notwithstanding the realization that it must be done.

Sobek said...

Mithras said: "So, you're suggesting that, like in the Loving case, courts should wait until a majority of state legislatures sanction same-sex marriage before striking down the bans in the states that don't?"

I'm suggesting that if it did so, they could say the decision was grounded in the actual will of the American people, instead of lying about it. You can't really deny that the Court today told the voters of California that they are unfit to govern themselves. That seriously doesn't bother you?

Hamilton asked: "Would you say that the right to not discriminated on the basis of race is not fundamental?"

I would say it doesn't make the slightest bit of difference whether it's fundamental or not, because the American people passed an amendment to the federal constitution telling the government what it can and cannot do.

That suggests that (a) the right not to be discriminated against was once not so fundamental that the Framers didn't put contrary language in the Constitution, and (b) when contemporary standards actually changed (as opposed to four judges telling us that standards have changed) the will of the people was made manifest through constitutional processes.

Adam P. said: "Just because a legislature votes for a law and passes it does not determine if it infringes upon a right."

I agree with that completely. The question is, how do you determine whether it does infringe upon a right? According to four people in California, the answer is "whenever we say it does." They claim based their decision on fundamental rights, but they also acknowledge that the "fundamental right" did not exist before today -- they had to overturn precedent. And they cannot claim that the right somehow became fundamental with societies evolving standards, because society (i.e. the California voters) expressly told the Court the contrary. The Court didn't care. In a fundamentally dishonest ruling, they told the voters not what they do believe, but what they should believe.

Jamison said: "'the state,' ... refers to the entirety of a state's legal agency -- not just its legislature, not just it's governor, nor even just one of its independent agencies."

All well and good, but the voter initiative under scrutiny here is the most clear-cut, undeniable expression of the fact that California voters do not consider the "right" a fundamental one, and that society has not evolved to create the right anywhere except on the bench.

Put another way, if I come in here and tell you that the vast majority of Americans now believe all abortion is murder and should be criminalized, you will (correctly) tell me I am wrong, and that society as a whole has made no such determination. The California Supreme Court today tells us that contemporary standards require gay marriage. In other words, they are lying. They know they are lying because the have the single most important datum right in front of them -- the election returns -- and they ignore it.

Jamison then said: "If you're going to lionize the states when they do things like try to cut off welfare benefits (1970s)..."

And that's the danger. Assuming for a moment that I ever lionized the states for trying to cut off welfare benefits, your argument is basically "you got away with it once, and we got away with it now." Where is the principle in that? More importantly, how will you defend that principle should the conservatives get a majority on the Supreme Court? If a bare majority of nine people is all it takes to define "contemporary standards" for equal protection purposes, how can you object when five justices decide to enshrine their every conservative policy impulse in the Constitution? How do you respond to "suck it up?"

And now to take a shot at an equally invalid argument, Adam said: "If you look to Europe today, the birth rate is far below replacement rate..."

Adam, your argument is basically that the California Supreme Court decided wrongly because gay marriage is a bad idea. And yet that kind of normative determination is every bit as offensive when it produces a socially conservative result (although in this case, at least it would be consistent with the evolving standards the Court purports to protect).

I'm not complaining about the Marriage Cases because of the result. I'm arguing that a Court which ignores the most probative evidence of contemporary standards in the very same breath in which it claims to protect those standards is profoundly dishonest, and an act of tyranny.

Sobek said...

I'll add one more brief note.

I think I am on the wrong side of history. The proliferation of homosexuality in the media has done more for the cause of gay rights than all the lawsuits combined, and the trend appears to be clear -- as time passes, homosexuality will become more acceptible, and legislatures will respond. What is a lie today -- that society's standards have changed -- may one day become truth. But it is not yet, and judges should not be in the business of lying to the people whose rights they would protect.

Jamison Colburn said...

Sobek: My response was (obviously, I hope) tongue in cheek. There is no excuse for any judge anywhere, anytime dictating the content of fundamental laws based on nothing more substantial than his or her own preferences (although I know at least one academic who argues exactly that scope for judicial power). On this issue at this time, though, it does seem a little beside the point to be exposing judicial imperialism.

egarber said...

Hey Sobek, I'm gonna pull our conversation into this post, which seems to be a better fit.


"...outside of those areas that specifically call for it ('cruel and unusual punishment', maybe)."

But that's the clause that best illustrates my point. Many U.S. Supreme Court Justices (but never a majority) decided that contemporary social standards reject the death penalty categorically, and they were prepared (contrary to all available evidence) to tell America as much. They were proven overwhelmingly wrong when the moratorium was lifted, and the states started passing new death penalty laws.


It does illustrate your point well, but I think it also reflects the unique difficulty of the eighth. The eighth essentially tells us to measure the winds of contemporary opinion -- what is "unusual" anyway? -- when weighing decisions. How do you determine when standards have tipped enough to make a ruling?

I also think what what you're exposing argues (maybe in an unintended way) against reading the rest of the constitution that way. Such an approach puts judges in the business of watching polls and measuring public opinion. That doesn't seem make the BOR a bulwark.

That's why for me, contemporary opinion is at best a minor component (outside of the eighth). The original principles don't change; they simply must be expressed in a contemporary setting. And broad deference must be given to the individual. In some ways, I'm in the Randy Barnett camp here (presumption of liberty), at least when it comes to equality, privacy, etc. But I'm not a libertarian.


Eric, you should find that notion -- that five people can tell you how you need to think about social issues -- every bit as repellent as I do. You have argued compellingly that courts should err on the side of freedom, but what of your freedom to govern yourself?

When we talk of "governing", we are referring to the exercise of government power over individuals. As an individual, I certainly have a right to offer my opinion and vote on how that given power should be used, but the contours of how far that power extends in the first place shouldn't (imo) be determined by mere majority will. If that was the rule, the BOR and larger constitutional framework would be basically meaningless .

Plus, there are ways for both states and the larger country to correct such "mistakes" when judges go nuts -- via constitutional amendments. Sure, a supermajority is needed (at least federally), but who is to say a simple majority is the right standard in the first place when it comes to an individual's zone of privacy and right to equality?


Back to your original point:

guess my question is, how can a right be deemed "fundamental" when it did not exist at the fouding, and the majority of voters oppose it today?

How would you square this with Brown v Board? Certainly in the South (if not the entire country), Plessy was the preferred standard among the general population. Should the Court simply have backed down – even though the more perfect realization of the principle was embodied in Brown?

Further, you consistently defend “color-blind” rulings that diminish traditional affirmative action (I’m not knocking the position, of course). As a defender of “colorblindness”, would you want the courts to uphold NON-colorblind programs if public opinion overwhelmingly favored it? In fact, the recent colorblind rulings overturned existing rules (a product of the democratic process). I guess I’m wondering: under your theory, when DOES the popular will get overturned on basic rights?

Good stuff as always, Sobek.

egarber said...

agree with that completely. The question is, how do you determine whether it does infringe upon a right? According to four people in California, the answer is "whenever we say it does."

Another thing to remember is that judges are appointed in the first place via the larger democratic process (elections, etc.). So it's overly simplistic to imply that they inherent a throne and reign.

egarber said...

Another quick comment:

I think it's possible to view constitutional adjudication as a sort of common-law process. As principles become more perfected, courts build on that. So you end up with an institution in itself. In that sense, I guess you could say it is a "living, breathing" trade.

With so many framers being common-law lawyers themselves, I'm thinking that many of them wouldn't be offended by this basic model.

Adam said...

In response to Brian K., there is a broader issue here, which is that people, as a general psychological matter, do not choose to have children unless they have a strong sense of identity that they wish to pass on to the next generation. Many if not most people develop that sense of identity from their cultural heritage. They feel like they are part of something larger than themselves, handed down from previous generations, and feel that they have a duty to pass that heritage on to the next generation. For better or worse, America's cultural heritage is in large part Christian, and when that heritage is undermined by our country's laws, then a people's desire to perpetuate itself is undermined. The proof is in the birth rate statistics.

The proof is in the demographic statistics. Why, for example, do Israelis give birth at a far higher rate than other democracies (not to mention commit suicide at a far lower rate)? Because they want to perpetuate their thousands of years of history. Why do the Japanese or the Europeans give birth at a very low rate? Because they were so thoroughly humiliated in World War II that they are too ashamed to want to pass on their cultural heritage.

It is in this way that allowing gays the ability to marry will reduce the number of nuclear families in the United States. It tells Americans that Christianity, their cultural heritage, is irrational and bigoted, and therefore not worthy of reverence. It is a nuanced argument, to be sure, but simply calling it "ridiculous" or "strained" is hardly sufficient rebuttal.

In response to Adam P, I wasn't specifically addressing the question of whether the California Supreme Court decided wrongly or not. I was merely pointing out that it is unfair to say that arguments against gay marriage are necessarily bigoted and that therefore courts can cavalierly assert that they have no rational basis, taking gay marriage out of the hands of the legislature. When people vote to deny gays the ability to marry, they do so not because of animus towards gays but because they seek to preserve their own cultural heritage, which forms their sense of self. Cultural self-preservation is eminently rational.

egarber said...

When people vote to deny gays the ability to marry, they do so not because of animus towards gays but because they seek to preserve their own cultural heritage, which forms their sense of self. Cultural self-preservation is eminently rational.

I disagree. You need more than that. Otherwise, we'd still be a racially segregated society. After all, black oppression was certainly about "cultural self-preservation".

Harry said...

1) How is it that the equal protection clause of the CA constitution has more rights than the US constitution when they're identically worded?

2) Seems like they're arguing that it's not an orientation-based classification but a sex-based one.

Brian K. said...

which is that people, as a general psychological matter, do not choose to have children unless they have a strong sense of identity that they wish to pass on to the next generation.
this is a pretty bald assertion and i think you need to provide some proof for this claim. i have only heard people at the extreme ends of ideological and sociological spectrums (i.e. religious fundamentalists) bring up this reason, which as a rule would exclude the population in general.


America's cultural heritage is in large part Christian, and when that heritage is undermined by our country's laws, then a people's desire to perpetuate itself is undermined. The proof is in the birth rate statistics.
you may (and i heavily stress the may) have a correlation, but you need to do more to prove causation than simply asserting it to be so.

There are many aspects of our current culture that undeniably have impacted our lifestyle decisions. The internet, the cell phone, easy travel via cars have allowed people to move farther away from their "home" and still stay in contact.


The proof is in the demographic statistics. Why, for example, do Israelis give birth at a far higher rate than other democracies (not to mention commit suicide at a far lower rate)? Because they want to perpetuate their thousands of years of history. Why do the Japanese or the Europeans give birth at a very low rate? Because they were so thoroughly humiliated in World War II that they are too ashamed to want to pass on their cultural heritage.
you most definitely need to provide proof for this fairly unbelievable stereotypes.


It is in this way that allowing gays the ability to marry will reduce the number of nuclear families in the United States. It tells Americans that Christianity, their cultural heritage, is irrational and bigoted, and therefore not worthy of reverence.
you have it backwards. as the next generation learns more about homosexuals they realize that the only difference is what gender the person wants to have sex with. homosexuals and heterosexuals have the same goals of family, life and work. the new generation sees this and then sees the bigotry levied at gays by the religious. is it any wonder they come out thinking that christianity is irrational and bigoted? the next generation is not as stupid as you seem to take them for...they are capable of seeing fundamental unfairness and can see through ridiculous arguments. (as proof i submit myself, a member of the youngest generation. while there are some of us who make arguments such as yours, they are much more a minority than in what i presume to be your generation.)


It is a nuanced argument, to be sure, but simply calling it "ridiculous" or "strained" is hardly sufficient rebuttal.
i find it funny that you think making unproven assertions not based on reality is a "nuanced argument".

Sobek said...

Almost had a heart-attack when I saw this thread is up to 19 comments. I'm glad only a few are responses to me.

Jamison said: "On this issue at this time, though, it does seem a little beside the point to be exposing judicial imperialism."

It is the most critical point. If the voters of California had passed an initiative recognizing gay marriage, I would not have complained. But they said the exact opposite, and the California Supreme Court knows it, and yet decided a major case based on their blatantly dishonest assertion of what they believe contemporary standards require.

Eric said: "The eighth essentially tells us to measure the winds of contemporary opinion -- what is 'unusual' anyway? -- when weighing decisions."

And yet the liberals on the Supreme Court don't seem to understand even that much: they were willing to strike down all death penalty laws contrary to actual contemporary opinion.

"Such an approach puts judges in the business of watching polls and measuring public opinion."

I'm not asking to put pollsters on the bench. I'm asking justices to stop pretending they are enforcing society's will, when society actually wants the exact opposite.

I'm sorry, I have to cut out the rest of your discussion for now.

Adam P. said...

Sobek said: The proliferation of homosexuality in the media has done more for the cause of gay rights than all the lawsuits combined, and the trend appears to be clear -- as time passes, homosexuality will become more acceptible, and legislatures will respond.


Sadly, this is backwards. Studies have long showed that the American popualtion is far more comfortable with LGBT persons than the media would suggest. LGBT people are grossly underrepresented in all network scripted television programs. There was a recent firestorm because As the World Turns has a gay couple who, tho monogamously coupled, never kisses.
Media, like law, often waits til ideas become noncontroversial (or at least less controversial,s ee the famous Kirk'-Uhuru kiss) before it gets involved.

Adam said...

egarber, the analogy between same-sex marriage and interracial marriage is inapt.

First of all, a ban on interracial marriage was contrary to our social traditions, in that it has always been contrary to Christian doctrine, in a way that a ban on gay marriage is not.

Secondly, racism was historically shown to be so divisive as to be the primary cause of the Civil War. Therefore, maintaining that racism ought to remain institutionalized as a means of cultural self-preservation is clearly nonsense, since on the contrary, it nearly tore our culture apart. Laws against homosexuality, in contrast, have never exhibited anywhere near that level of divisiveness.

Thirdly, and most importantly, the Federal Constitution was amended with the clear purpose to eliminate the problem of institutionalized racism, whereas there has never been any such societal consent for treating homosexuals equally to heterosexuals.

egarber said...

First of all, a ban on interracial marriage was contrary to our social traditions, in that it has always been contrary to Christian doctrine, in a way that a ban on gay marriage is not.

That’s a pretty arbitrary statement. Aren’t *laws* perhaps the best barometer of “social traditions”? Miscegenation laws were on the books for a number of years before Loving – i.e., they were the very codification of “social traditions” up to that point. It’s not a convincing argument (imo) to cherry pick examples where the law somehow “runs contrary” to true traditions. The law IS the tradition.

[As an aside, there were a good number of “Christians” who defended those bans on biblical grounds.]

Secondly, racism was historically shown to be so divisive as to be the primary cause of the Civil War.

Not really. SLAVERY was of course a major contributor, but racism itself wasn’t at play. Many abolitionists still thought that black people were inferior (Thomas Jefferson as well), even after emancipation. And ideas were floated to carve out separate space for free blacks – or to send them to their own island nation to live separately from whites.

Therefore, maintaining that racism ought to remain institutionalized as a means of cultural self-preservation is clearly nonsense, since on the contrary, it nearly tore our culture apart.

No. Slavery did nearly tear our country apart; but *racism* remained a perfectly acceptable part of our culture, even after the Civil War. And even after the 14th was passed, the “culture” only saw the need for separate but equal treatment, no further.

Laws against homosexuality, in contrast, have never exhibited anywhere near that level of divisiveness.

Not sure why this matters in a constitutional analysis. Equality is either a principle to be perfected, or it’s not, it seems to me. If the test for even rational scrutiny is simply that a law has been on the books for a while and hasn’t generated extreme divisiveness, that’s no standard at all, I don’t think. That’s why I don’t think “cultural preservation” means anything in the analysis – simply saying “it’s always been that way” doesn't illustrate a valid state need, imo.

Thirdly, and most importantly, the Federal Constitution was amended with the clear purpose to eliminate the problem of institutionalized racism, whereas there has never been any such societal consent for treating homosexuals equally to heterosexuals.

If you mean the Fourteenth, that’s certainly true. But it’s also true that it was passed to incorporate the BOR for everyone against the states. It’s virtually impossible to not see this in the debates (especially in Congress) leading to its passage and ratification. And though eradicating institutionalized racism was the immediate purpose, the Amendment speaks of “equal protection” broadly. If it was intended to stop at the treatment of black people, it’s framers would have said so – as they did in the 15th. It would have been easy to say, “nor deny to any person within its jurisdiction the equal protection of the laws… ON ACCOUNT OF RACE.”.


But even if the 14th only applied to race, like I said earlier, society was arguably only signing up for "separate but equal" treatment -- which kept miscegenation laws firmly part of the culture. Hence my original point: "cultural preservation" is too weak to mean anything.

egarber said...

That’s a pretty arbitrary statement. Aren’t *laws* perhaps the best barometer of “social traditions”? Miscegenation laws were on the books for a number of years before Loving – i.e., they were the very codification of “social traditions” up to that point. It’s not a convincing argument (imo) to cherry pick examples where the law somehow “runs contrary” to true traditions. The law IS the tradition.

To qualify my point a little, I realize that less than half. of all states had legal bans on inter-racial marriage at the time of Loving. But given the societal taboo associated with it, I think those laws spoke for the American culture at large. In other words, I don't think society was coming to accept it simply because all 50 states didn't have outright bans.The "tradition" was to keep the races institutionally separate.

egarber said...

For Adam:

But even if the 14th only applied to race, like I said earlier, society was arguably only signing up for "separate but equal" treatment -- which kept miscegenation laws firmly part of the culture. Hence my original point: "cultural preservation" is too weak to mean anything.

Or in other words, racism remained firmly part of the culture and tradition, despite the fact that the seeds for later throwing out separate but equal were planted in the constitution.

It took Brown to finally confront that longstanding and ugly cultural rule ("societal acceptance" hadn't extended to racial integration). I don't see how it would be any different if a similar landmark took on the tradition of discriminating against homosexuals, even if the immediate purpose of the 14th at its inception was to deal with race.

If I'm not mistaken, I think you're trying to say that the original purpose of the constitutional changes makes one form of traditional discrimination rational (gay people), and another not (black people) -- i.e., the former is therefore valid "cultural identity", while the latter isn't.

I simply don't see how this can be.It doesn't make it rational to discriminate against gay people today, simply because they weren't the original group discussed in the constitutional debates. It seems to me that your better route would be to literally argue that the 14th ONLY applies to race; if you allow that it covers classes beyond race, it's way too arbitrary (imo) to have a moving rational scrutiny / cultural identity test based on the group in question.

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