In a jaw-dropping amicus 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. And South Carolina deserves some credit for having the chutzpah to raise it.
Here’s the gist of South Carolina’s fascinatingly sexist argument. The state wants to prove that the 14th Amendmentwhich 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.