Gooner
Pit League Fantasy Football Commissioner
OK, I'm going to try to be a textualist for a moment (then immediately take a shower). All together, let's read and analyze the text of the Fourteenth Amendment to the Constitution of the United States of America. For purposes of consistency with this thread, we will analyze its text as it pertains to gay marriage. Buckle in, this should be fun.
First, let's start with the very first sentence, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The text very clearly states that the Amendment applies to all persons, which includes gays and lesbians. The gays have standing. Good start.
Next, the first clause of the second sentence: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . ." Let's break this down using very small sections. "No state" clearly refers to the 50 states that comprise the United States of America. From the Redwood forest to the gulf stream waters, the Fourteenth Amendment applies to you, and it's about to tell you what you cannot do. Next, we look at the command of this section: ". . . shall make or enforce any law . . ." If we look at the text of this section, there are a lot of words with very clear meanings. "Make" means to create or construct; "enforce" means to compel observance of or compliance with. Seems pretty straightforward. And most clear of all, "any law" means exactly what it says, I don't think we need to break out our canons of construction for that section. So far, we have figured out that none of the 50 states shall create, construct, or compel compliance with any laws. Wait, shit, we need more. On to the last part of this section! What laws can the states not make? Laws "which shall abridge the privileges or immunities of citizens of the United States." OK, a lot to unpack here, let's move it to a new paragraph.
"Abridge" means to curtail, but that may be too big a word for some of our conservative counterparts, so what does curtail mean? To "impose a restriction on," much easier to understand. So states shall not make laws that impose a restriction on, "the privileges or immunities of citizens of the United States." Great, but what constitutes a privilege or immunity? If we look to Black's Law Dictionary, we find the following definition:
Hmm. I think you could make a pretty good case that there are particular and peculiar benefits enjoyed by heterosexuals beyond the common advantages of other citizens (in this case, homosexuals). There are a number of particular benefits afforded to those that are married. Tax benefits, spousal benefits, general social welfare, the list goes on and on, and that list, should we take Junebug's approach to the Fourteenth Amendment, applies only to heterosexuals. But isn't that what the Fourteenth Amendment is supposed to protect against? I would argue it does, but, for the moment (and because there's a better argument to come, stay tuned!), let's give that one to our conservative friends. On to the next clause!
The second clause reads: "nor shall any state deprive any person of life, liberty, or property, without due process of law. . ." A very noble sentiment, one that our great Constitution was written to promote, and one that doesn't need stringent textual analysis to understand. Again, this isn't the most helpful to our cause, though there is another good argument to be made that laws banning gays from marriage deprives them of liberty (and possibly property). Still, this clause is just another appetizer. We saved the best for last!
Our last clause of Section 1 of the Fourteenth Amendment states: "nor deny to any person within its jurisdiction the equal protection of the laws." AND THE TRUTH WILL SET YOU FREE! [insert jimcarreyliarliar.gif here] Remember, we are still referring to "No state," so everyone is covered here. What can no state do? Deny (4-letter word, short enough for conservative minds to understand) to any person (including gays) within its jurisdiction (which means anyone who is a resident of a state) the equal protection of the laws. Now, that last part seems to be a bit of a bugaboo for our conservative pals, so let's do one final analysis to really hammer home the meaning of the Fourteenth Amendment.
"Equal" means "like in quality, nature, or status; like for each member of a group, class, or society; regarding or affecting all objects in the same way" (it also means the worst tea sweetner in the known universe, but again, I digress). Equal means what we think it means, that everyone gets the same treatment no matter if they are black, white, orange (shoutout to President Cheeto), gay, straight, bi, trans, rich, poor, a Duke fan, etc. "Protection" means "to cover or shield from exposure, injury, damage, or destruction." I'd like to emphasize the use of injury in that definition, as injury has legal consequence as a term, especially regarding laws created to discriminate against a particular class of individuals.
So, we have a clause that essentially means that no state can deny any of its citizens a shield from injury under the laws of that state, and that shield must be afforded to all citizens in the same way. If I've done my textualism right, and I'm fairly certain I have, that means that laws that injure certain classes of people (like, let's just throw out a random example, barring gays from marrying for no reason) run afoul of the Fourteenth Amendment.
Look, Junebug, I know it really sucks that women and blacks and gays and Muslims and immigrants and poor people and many more groups of people that you treat with utter disdain get to benefit from the laws of the United States. And I know it really, REALLY sucks that you can't then create laws to take away those benefits. But until we repeal the Fourteenth Amendment, it is what it is, and hopefully we all have a better appreciation for the Amendment now.
First, let's start with the very first sentence, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside." The text very clearly states that the Amendment applies to all persons, which includes gays and lesbians. The gays have standing. Good start.
Next, the first clause of the second sentence: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States . . ." Let's break this down using very small sections. "No state" clearly refers to the 50 states that comprise the United States of America. From the Redwood forest to the gulf stream waters, the Fourteenth Amendment applies to you, and it's about to tell you what you cannot do. Next, we look at the command of this section: ". . . shall make or enforce any law . . ." If we look at the text of this section, there are a lot of words with very clear meanings. "Make" means to create or construct; "enforce" means to compel observance of or compliance with. Seems pretty straightforward. And most clear of all, "any law" means exactly what it says, I don't think we need to break out our canons of construction for that section. So far, we have figured out that none of the 50 states shall create, construct, or compel compliance with any laws. Wait, shit, we need more. On to the last part of this section! What laws can the states not make? Laws "which shall abridge the privileges or immunities of citizens of the United States." OK, a lot to unpack here, let's move it to a new paragraph.
"Abridge" means to curtail, but that may be too big a word for some of our conservative counterparts, so what does curtail mean? To "impose a restriction on," much easier to understand. So states shall not make laws that impose a restriction on, "the privileges or immunities of citizens of the United States." Great, but what constitutes a privilege or immunity? If we look to Black's Law Dictionary, we find the following definition:
Hmm. I think you could make a pretty good case that there are particular and peculiar benefits enjoyed by heterosexuals beyond the common advantages of other citizens (in this case, homosexuals). There are a number of particular benefits afforded to those that are married. Tax benefits, spousal benefits, general social welfare, the list goes on and on, and that list, should we take Junebug's approach to the Fourteenth Amendment, applies only to heterosexuals. But isn't that what the Fourteenth Amendment is supposed to protect against? I would argue it does, but, for the moment (and because there's a better argument to come, stay tuned!), let's give that one to our conservative friends. On to the next clause!
The second clause reads: "nor shall any state deprive any person of life, liberty, or property, without due process of law. . ." A very noble sentiment, one that our great Constitution was written to promote, and one that doesn't need stringent textual analysis to understand. Again, this isn't the most helpful to our cause, though there is another good argument to be made that laws banning gays from marriage deprives them of liberty (and possibly property). Still, this clause is just another appetizer. We saved the best for last!
Our last clause of Section 1 of the Fourteenth Amendment states: "nor deny to any person within its jurisdiction the equal protection of the laws." AND THE TRUTH WILL SET YOU FREE! [insert jimcarreyliarliar.gif here] Remember, we are still referring to "No state," so everyone is covered here. What can no state do? Deny (4-letter word, short enough for conservative minds to understand) to any person (including gays) within its jurisdiction (which means anyone who is a resident of a state) the equal protection of the laws. Now, that last part seems to be a bit of a bugaboo for our conservative pals, so let's do one final analysis to really hammer home the meaning of the Fourteenth Amendment.
"Equal" means "like in quality, nature, or status; like for each member of a group, class, or society; regarding or affecting all objects in the same way" (it also means the worst tea sweetner in the known universe, but again, I digress). Equal means what we think it means, that everyone gets the same treatment no matter if they are black, white, orange (shoutout to President Cheeto), gay, straight, bi, trans, rich, poor, a Duke fan, etc. "Protection" means "to cover or shield from exposure, injury, damage, or destruction." I'd like to emphasize the use of injury in that definition, as injury has legal consequence as a term, especially regarding laws created to discriminate against a particular class of individuals.
So, we have a clause that essentially means that no state can deny any of its citizens a shield from injury under the laws of that state, and that shield must be afforded to all citizens in the same way. If I've done my textualism right, and I'm fairly certain I have, that means that laws that injure certain classes of people (like, let's just throw out a random example, barring gays from marrying for no reason) run afoul of the Fourteenth Amendment.
Look, Junebug, I know it really sucks that women and blacks and gays and Muslims and immigrants and poor people and many more groups of people that you treat with utter disdain get to benefit from the laws of the United States. And I know it really, REALLY sucks that you can't then create laws to take away those benefits. But until we repeal the Fourteenth Amendment, it is what it is, and hopefully we all have a better appreciation for the Amendment now.
