Proof Marriage not Protected Under the Fourteenth Amendment
by P.A. Madison on August 13th, 2010
Need proof the 39th Congress who debated and adopted the Fourteenth Amendment did not consider State laws of marriage to come under the amendment?
Former rebel States under Reconstruction were required to frame new constitutions and have State statutes that conformed to the provisions of the Fourteenth Amendment. Constitutions and questionable laws had to first receive approval of the House and Senate before any of the former rebel States could be restored. This included lengthy floor debates over each States new Constitution and any questionable statutes found.
Section 1707 of the Georgia Code provided, that “the marriage relation between white persons and persons of African descent is forever prohibited, and such marriages shall be null and void.” Neither Congress nor the US District commander found any objections to this code and it remained on the books after Georgia’s Constitution and laws was found to conform with the Fourteenth and Fifteenth Amendments by those who framed them.
The court came to same conclusion in Ex rel. Hobbs & Johnson, § 13, 14.
As I have mentioned before, there is mass confusion today over equal protection and equal rights. The courts would be well advised to learn the difference between these two distinct principles.
This is a silly argument. Congress and states routinely make laws that violate the Constitution; we see state and federal laws struck down every year as unconstitutional. Politicians are subject to political pressures and society’s worst forms of majoritarian oppression. That’s why we have separation of powers and judicial review. Moreover, anti-miscegenation laws say nothing about whether marriage would have been considered a fundamental right. It just meant that Georgia (and many others at the time) thought they could discriminate in offering that fundamental right, much like same sex couples are discriminated against today.
I take it Loving v. Virginia and Brown v. Board were incorrectly decided in your opinion? This is the true litmus test of how odious and radical originalism can become…
I don’t think this has anything to do with routine laws that might violate the constitution. This is about a congress who drafted and adopted an amendment and required certain states to conform to its principles and went to great lengths like floor debates and voting to make sure each former state did.
Libertarians won’t like this.
J Aldridge, could you answer my question about state power in the previous post? (It’s not a trap. I mostly agree with what I’ve seen of your comments at Volokh Conspiracy.)
(This is the last time I’ll ask. I remain interested in the questions but will drop them if no one else is.)
On the narrow view of the 14th Amendment,
(a) can states treat race and gender as qualifications for holding real property?
(b) can states treat the murder of a white as a crime different from the the murder of a non-white?
No, but they can based upon alienage which was a common practice.
No. The equal protection clause removed white and black from the criminal statutes.
Thanks. I have some follow-up questions, but there’s no need to answer if you’re not interested in them.
(a) Is the ability to hold real property a right of citizenship, so that a state would violate it by a statute seizing all land and ending freehold?
(b) Can a right to hold property be voluntarily waived, so that, eg, married women cannot hold property in their own names?
(c) Do criminal laws that draw distinctions based on the victim’s race run afoul of equal protection even when the perpetrator’s race is not taken into consideration?
(d) Could a state’s criminal code punish interracial offenses more severely than offenses where the perpetrator and victim are of the same race, as long as no race receives special treatment? (I’m thinking of Pace v. Alabama)