Magic powers conferred by the Robe
The full text of the first section of the 14th Amendment reads as follows:
Section. 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
That seems fairly straightforward, right? It defines American citizenship, and says that any right granted to citizens are granted to all citizens. In fact, given the language used (“persons”), I’m not sure that the US could refuse citizenship to sentient robots, vampires, or extra-terrestrial aliens.
Section 2 contradicts Section 1 a small bit, in that it specifically sets aside voting rights to males over the age of 21 and who haven’t “participat[ed] in rebellion, or other crime”
Sections 3 and 4 also stick it to the confederate veterans of the Civil War.
The 19th Amendment gives women the right to vote.
Both the 14th and 19th amendments have the following words as their final section “Congress shall have power to enforce this article by appropriate legislation.”
A plain reading of the basic text of the US Constitution would thus mandate that any law that demands employers treat employees a certain way applies to men and women. And straight people and gay people. And people of any color or ethnic background humanity cares to invent. If the Federal, or a State, government wants to allow a pair of people to form a union and become a single legal entity (marriage), then a plain reading of the Constitution demands that such a right is granted to all citizens.
Antonin Scalia doesn’t like this. He doesn’t like this at all. I won’t read his mind to state his motivations for not liking this, but Scalia reads the minds of voters 1868 and decides that “if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”
None of them, eh Scalia? That’s a big statement. It’s also irrelevant. Their minds are now dust, but their words are eternal. If they wanted to codify gender or orientation discrimination into the Constitution, they should have done so. They specifically outlawed religious*, ethnic, and racial discrimination. Our ancestors have had 235 years in which to do so. They didn’t, and now we’re finally realizing that they didn’t.
I’ll even perhaps agree with Scalia that this was an oversight on the part of centuries of voters. Their blindness left a huge breach in the firewall of bigotry. Americans of the 21st century have the choice now about how much to exploit that breach, and how quickly we may be able to burn the edifice of hate. Scalia has decided to throw himself against the oncoming surge of human happiness. Oddly, he seems to give his own fears more weight than the text of the Constitution.
*Good thing for Scalia that they did so. Many people feared that by not insisting on a religious test, we might end up with a Catholic (like Scalia) as a holder of high office.
