Originally Posted by tonton
Pease show me where in the 14th amendment sexual preference and gender are excluded. Not being excluded means they are included, as are left handedness, six-fingeredness, and thick headedness.
Let's begin with the 14th amendment operative phrase (and the meaning) under dispute:
"... nor deny to any person within its jurisdiction the equal protection of the laws. "
First, note that it does not say WHAT it protects a person from... "the equal protection of the laws" does not specify a group or race, only that persons are protected under the law from something undefined.
We have only two choices: we could, of course, freely speculate on what persons are equally protected from. Perhaps they are equally protected from disease in the law, or from unequal taxation, or equally protected from foreign invasion, or from ignorance, or from 14 hour days, or from denial of their right to vote, or unequal building codes, or unequal tooth decay, or from unequal job losses, or just from unequal unhappiness.
And if all of the above were true then laws which provide for the unequal taxation of persons (eg the rich taxed more than the poor), or that specifies funding research on some diseases but not others, or that specif ices the limited working hours of blue collars but not white collars, or laws that vary from state to state on occupational practice or building safety, or that limit public college enrollment based on grades and ability, or to help one economic profession more than another, or protect one coast more than another, etc. would all violate equal protection of the law.
In spite of your 'just knowing', equal protection of the law has no "plain meaning" unless it is grounded in historical understanding. The ONLY other option is to make your own assumptions based on your OWN bias and desires.
Second, the history of slavery and reconstruction, the Congressional debate and case law tells us what people understood the clause meant. The three amendments (13th, 14th, and 15th) were created in response to the black codes, the post civil war laws of slave states that denied freemen their civil rights because of their race.
The Slaughterhouse case provide the earliest understanding, soon after the amendments were passed. In 1869 the City of New Orleans passed a law to "protect the health of the city of New Orleans, (and) to locate the stock landings and slaughterhouses, and to incorporate the Crescent City Livestock Landing aud Slaughter-House Company." The law forbade the landing or slaughtering of animals within the jurisdiction except at a particular location, run by a City chartered monopoly with its own slaughterhouses.
But the law also required the corporation to provide access to it's own slaughterhouses by independent butchers and fixed "a limit to the charges to be made by the company for each animal so slaughtered in their building, and another provides for an inspection of all animals intended to be so slaughtered by an officer appointed by the governor of the State for that purpose.".
This statute was denounced by the City butchers as a monopoly, conferring exclusive privileges upon a small number of persons and the expense of the community and the butchers of the city. In their suit, they claimed that this law was a violation in that it created a form of involuntary servitude (13th amendment), abridged privileges and immunities (14th), and denied the butchers equal protection of the laws (14th).
Justice Miller, in writing for the majority explained what equal protection is protecting:
We repeat, then, in the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. ...
We do not say that no one else but the negro can share in this protection. Both the language and spirit of these articles are to have their fair and just weight in any question of construction. Undoubtedly while negro slavery alone was in the mind of the Congress which proposed the thirteenth article, it forbids any other kind of slavery, now or hereafter. If Mexican peonage or the Chinese coolie labor system shall develop slavery of the Mexican of Chinese race within our territory, this amendment may safely be trusted to make it void. And so, if other rights are assailed by the States which properly and necessarily fall within the protection of these articles, that protection will apply, though the party interested may not be of African descent. But what we do say, and what we wish to be understood, is that, in any fair and just construction of any section or phrase of these amendments, it is necessary to look to the purpose which we have said was the pervading spirit of them all, the evil which they were designed to remedy, and the process of continued addition to the Constitution, until that purpose was supposed to be accomplished as far as constitutional law can accomplish it.
...In the light of the history of these amendments, and the pervading purpose of them, which we have already discussed, it is not difficult to give a meaning to this clause. The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden...
So Judge Miller explained the meaning: EQUAL PROTECTION means equal protection of persons civil rights regardless of their race. This applies to all persons. Nothing about left-handedness (etc.).
Finally, Judge Miller understood that the amendment did not provide any guidelines to its application, other than that which is grounded in its original purpose and understanding:
...still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment.
Miller understood that without boundaries, "equal protection" could mean anything to any judge. It could be a policy making tool of judges (as it has been recently by Walker) who decides what is to be protected, and in what regard.
Rest assured, I do wish it meant to protect (for example) economic rights. It did not...no more than it was intended to protect against limitations on same sex marriage.http://www.law.cornell.edu/supct/htm...3_0036_ZO.html
Be honest. Be honest.... BE HONEST.
You think we should be allowed to discriminate against gays because you believe that gayness is wrong. Period. Say it. Admit it.
LOL...reminds me of "Back to School" and professor Turgenson screaming louder and louder "say it...Say It...SAY IT"...
Anyway "gayness" is not wrong per se', it is just nature's mistake. Abnormalities in the brain occur all the time in the womb (or in upbringing) leading to mental disorders - epilepsy, Tourette's syndrome, pedophilia, bestiality, and homosexuality. I am not judgemental, except when such severe disorders harm others.
Discrimination against gays, regarding marriage, should be allowed because it is within the democratic rights of the people.