South Carolina To Scotus: We Discriminate Against Women, So You Have To Let Us Discriminate Against Gay People

South Carolina, like probably several states in the upcoming years, is suing for their right to discriminate against gay people. Their argument goes so far back in our country’s history that it’s almost like re-adjudicating slavery.

In an amicus brief to the Supreme Court, South Carolina made the claim because the Constitution allows discrimination against women, it also allows discrimination against gay people.

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 10th Amendment 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.

Source: Slate

When the Fourteenth Amendment was ratified, the women’s movement had begun but in the name of unity, women put aside their own agenda because of the Civil War. The assumption was that women would be given full rights after the war was won.

Unfortunately, it didn’t work that way. The Fourteenth Amendment was great for black men, but it managed to leave women out of the right to vote.

The Equal Protection Clause of the Fourteenth allowed the states to determine what rights they would give to women – especially to married women.

So, essentially, South Carolina is saying that because states can define women’s rights in marriage, they can define marriage. Believe it or not, women still don’t have that constitutional protection.

Mark Joseph Stern at Slate says that technically, South Carolina is right, but only if the SCOTUS wants to be complete d***s about it and if the court wants to rule against its own history.

Even this court should recognize that we’ve grown beyond the days of slavery and stovepipe hats. The court has held in many cases that the Fourteenth does protect married women.

Maybe there could be a silver lining to this one, though. Maybe the country will finally see the need for an Equal Rights Amendment to the Constitution, and yes, we’ll happily include LGBT people in that.

Featured image via Wikipedia.