The only real question of importance regarding Proposition 8 is whether or not a State and the people therein have retained the power to self governance which includes establishing requirements for the issuances of licenses, including marriage licenses.
In compliance with California’s most basic law, the people of California have voted two times to forbid a state marriage license to be issued to a same sex couple. And thus, in compliance with the will of the People of California, the United States Supreme Court ought to abide by the federal Constitution’s Ninth and Tenth Amendments and uphold the ban as being constitutional.
But our misinformed Ted Olson pontificates that the 14th Amendment of the Constitution stands in the way of that argument because it guarantees all citizens equal protection of the law. It was “specifically enacted as a check on the power of the states,” Olson observes, "whether exercised by the people directly, as in Proposition 8, or by a state legislature. SEE: In First Of 2 Gay-Marriage Cases, Court Turns To Proposition 8
But the truth is, the 14th Amendment was “specifically” adopted to prohibit the states from enacting laws which made distinctions in a very narrow area, and those distinctions were repeatedly identified during the 39th Congressional debates giving rise to the 14th Amendment. The legislative intent was to forbid laws which made distinctions based upon race, color or previous condition of slavery! It was never intended to be a sweeping law prohibiting the states to make distinctions based upon sex or sexual orientation.
As a matter of fact one of the supporters of the 14th Amendment summarized the very intentions of the 14th Amendment as follows:
***“Its whole effect is not to confer or regulate rights, but to require that whatever of these enumerated rights and obligations are imposed by State laws shall be for and upon all citizens alike without distinctions based on race or former condition of slavery…It permits the States to say that the wife may not testify, sue or contract. It makes no law as to this. Its whole effect is to require that whatever rights as to each of the enumerated civil (not political) matters the States may confer upon one race or color of the citizens shall be held by all races in equality…It does not prohibit you from discriminating between citizens of the same race, or of different races, as to what their rights to testify, to inherit &c. shall be. But if you do discriminate, it must not be on account of race, color or former conditions of slavery. That is all. If you permit a white man who is an infidel to testify, so you must a colored infidel. Self-evidently this is the whole effect of this first section. It secures-not to all citizens, but to all races as races who are citizens- equality of protection in those enumerated civil rights which the States may deem proper to confer upon any race.”***___ SEE: Rep. Shallabarger, Congressional Globe, 1866, page 1293
In fact, the 14th Amendment, as applied to a state issuing a marriage license, may not make distinctions based upon race, color, or previous condition of servitude. But there the restriction ends!
The argument that the wording in the 14th Amendment: (a)“all persons”, (b)“No State shall make any law which shall abridge the privileges or immunities of citizens of United States.”, © “[N]or deny to any person within its jurisdiction the equal protection of the laws”, as being evidence the 14th Amendment was intended to forbid distinctions based upon sex or sexual orientation and be a universal rule to bar every imaginable type of discrimination, falls flat on its face when reading the next amendment to the Constitution, the 15th Amendment, which goes on to forbid discrimination based upon “race, color, or previous condition of servitude” at the voting booth, while gender, and in particularly females, are not yet included in this protection.
The argument that the 14th Amendment prohibits state discrimination based upon sex or sexual orientation, becomes even weaker when reading the 19th Amendment which specifically forbids a new kind of discrimination. In this Amendment the People of America decide to forbid gender discrimination, but only extend the prohibition with respect to the right to vote being “denied or abridged” on account of “sex”
If the 14th Amendment prohibited every kind of discrimination, as suggested by Ted Olson, then why were the above mentioned amendments added to the Constitution after the adoption of the 14th Amendment?
Finally, why would there have been a proposed and so-call equal rights amendment attempted to be added to the Constitution of the United States in the 1980s to prohibit sex discrimination, which fell short of the required number of ratifying States, if the 14th Amendment already prohibited discrimination based upon sex as suggested by Olson?
Bottom line is, Ted Olson wants to make the 14th Amendment mean whatever he wishes it to mean and to hell with the documented intentions under which it was adopted. Likewise, his desire is to further erode and undermine federalism, and nullify consent of the governed which is the cornerstone of our constitutionally limited system of government. But until the American people adopt a constitutional amendment to our federal Constitution with the intention to forbid state laws which make distinctions based upon gender and/or sex, his arguments are without merit as applied to the constitutionality of California’s Proposition 8, which was dully voted upon by the people and does nothing more than establish a rule by which a marriage license will be issued by the State. Aside from that, let me be clear, Ted and Fred are free to exercise their inalienable right to contract with each other and live their lives happily ever after, which is in no way impaired by, nor should it be impaired by, Proposition 8. So what’s the big ado about other than asking the Court to engage in judicial tyranny and ignore federalism, our Constitution’s plan?
If the America People do not rise up and defend their Constitution and the intentions and beliefs under which it was adopted, who is left to do so but the very people who it was designed to control and regulate?