Saturday, April 13, 2013

The Supreme Court and the 14th Amendment

As the Supreme Court looks at the issue of same-sex 'marriage' the basic question centers on the Constitution’s 14th Amendment. The 14th Amendment was ratified after the War Between the States and specifies that “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.” The question that the Supreme Court must consider is whether California’s Proposition 8 and the Federal Defence of Marriage Act violate the 14th Amendment. This is a constitutional question that ought to be considered on purely legal grounds, though this is not happening because politics and ideology have inevitably got mixed up in it. But theoretically, it ought to simply be a question of what the Constitution means when it grants people equal protection under the law?

My own personal view is that if one assumes that marriage means a union of two persons, then a strong case can be made that both Proposition 8 and DOMA violate the 14th Amendment in the same way that a law prohibiting interracial marriage would violate it. The problem is that the only way one can assert that marriage is a union of persons is to assume in advance a certain verdict of the lawsuit, for as things presently stand in federal law marriage is not a union of persons but a union of a man and a woman. Arguing for a verdict with categories that already presuppose that outcome is called circular reasoning. There are signs that some of the Supreme Court Justices are being persuaded by this fallacious circular reasoning.

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