This evening Bill O’Reilly and Andrea Tantaros with respect to “gay” [homosexual] marriages, suggested the 14th Amendment requires the equal protection of the law. What the 14th Amendment actually requires is, whatever law a state adopts with regard to a state issued marriage license, "no person" [singular] may be denied the equal protection of that law. But if a state makes a license law which makes a distinction based upon race, color or former condition of slavery, the expressed legislative intent of the 14th Amendment was to prohibit such a distinction. There is nothing in the 14th Amendment’s language or debates of the 39th Congress which gave birth to the 14th Amendment that it was intended to forbid a State to make distinctions in law based upon sex. In fact, the Equal Rights Amendment which would have forbidden distinctions based upon sex was specifically rejected and one of the reasons for its rejection was because if it were adopted it would lead to same sex marriages.
And what does the 14th Amendment actually state? It states “ ...nor deny to any person within its jurisdiction the equal protection of the laws.” All that declares is, whatever laws a state passes any person is to get the equal protection of those laws. It mentions nothing about forbidding state laws which make distinctions based upon sex!
So, whatever Bill O’Reilly’s or Andrea Tantaros’ personal views are with respect to an alleged injustice or fairness of a State requiring applicants for a state issued marriage license to consist of one male and one female, they are totally irrelevant to enforcing both the text and legislative intent of the 14th Amendment! We are a nation governed by the rule of a written Constitution and not by the whims and fancies of judges, Justices or the personal views of individuals.
And now, with regard to the documented legislative intent of the 14th Amendment, it was summarized as follows by one of its supporters.
“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. Shellabarger, Cong. Globe, 1866, page 1293
So tell us Mr. O’Reilly, will you clarify for your listening audience exactly what the text of the 14th Amendment states in its plan language, and its legislative intent as expressed during its framing which gives context to its language? I ask you this because the most fundamental rule of constitutional construction is stated as follows:
The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.-- numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.
JWK
"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968
And what does the 14th Amendment actually state? It states “ ...nor deny to any person within its jurisdiction the equal protection of the laws.” All that declares is, whatever laws a state passes any person is to get the equal protection of those laws. It mentions nothing about forbidding state laws which make distinctions based upon sex!
So, whatever Bill O’Reilly’s or Andrea Tantaros’ personal views are with respect to an alleged injustice or fairness of a State requiring applicants for a state issued marriage license to consist of one male and one female, they are totally irrelevant to enforcing both the text and legislative intent of the 14th Amendment! We are a nation governed by the rule of a written Constitution and not by the whims and fancies of judges, Justices or the personal views of individuals.
And now, with regard to the documented legislative intent of the 14th Amendment, it was summarized as follows by one of its supporters.
“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. Shellabarger, Cong. Globe, 1866, page 1293
So tell us Mr. O’Reilly, will you clarify for your listening audience exactly what the text of the 14th Amendment states in its plan language, and its legislative intent as expressed during its framing which gives context to its language? I ask you this because the most fundamental rule of constitutional construction is stated as follows:
The fundamental principle of constitutional construction is that effect must be given to the intent of the framers of the organic law and of the people adopting it. This is the polestar in the construction of constitutions, all other principles of construction are only rules or guides to aid in the determination of the intention of the constitution’s framers.-- numerous citations omitted__ Vol.16 American Jurisprudence, 2d Constitutional law (1992 edition), pages 418-19 - - - Par. 92. Intent of framers and adopters as controlling.
JWK
"The public welfare demands that constitutional cases must be decided according to the terms of the Constitution itself, and not according to judges' views of fairness, reasonableness, or justice." -- Justice Hugo L. Black ( U.S. Supreme Court Justice, 1886 - 1971) Source: Lecture, Columbia University, 1968