Wednesday, August 4, 2010

The Fourteenth Amendment

Section One of the Fourteenth Amendment to the US Constitution reads as follows:
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.
Equal protection under the law. That means something, whether you’ve benefited from the rulings of Brown vs. the Board of Education, or were a Mormon denied voting rights in the Idaho Territory for 18 years and in the state for two years, between 1872 and 1892. Mormons were also barred from holding political office or serving on juries.

Elements of these laws remained in the state lawbooks – though unenforced – until 1982.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. Nor deny to any person within its jurisdiction the equal protection of the laws. Only through due process of law can a state deprive any person of life, liberty, or property.

That’s clear to me. Very clear.

So how can I, as an American and a Mormon, reconcile my trust in the freedoms guaranteed by the US Constitution – a document we’re reminded time and again was inspired of God – with demands that same-sex marriage be outlawed? I can’t. Can I go out on a limb – at least in this neck of the woods – and say I approve of the California Supreme Court’s ruling today striking down the state’s voter-approved ban on same-sex marriage? I’m going to.

Yes, I anticipate this ruling going to the US Supreme Court. And I don’t suspect they’ll make any decision different than the California Supreme Court. Tyranny of the majority is ugly, especially when you’re in the majority.


carl g said...

Of course Prop 8 was going to get overturned, and rightly so. In the end the judge said that a moral argument has been made but not a legal one, and this has always been the problem. Majority moral judgments are not constitutionally protected, but individual freedoms are.

Mormons have taken a beating on this and will continue to, because there is no way you can oppose gay marriage without arguing, effectively, for depriving gays of certain rights on moral grounds. A Mormon called into the nationally-broadcast Diane Rhem Show today to defend "the Mormon position." He carped about how sick he was of being labeled a bigot, that he was not trying to deprive anyone of any individual right, that gays had the same right to marry as anyone else, but that the traditional definition of marriage needed to be preserved.

E. J. Dionne said, "Well, that's a new argument. So this is not discriminatory because gays have the same right as everyone else to marry--heterosexually--which of course doesn't apply to them at all."

Sheesh, if Mormons are going to discuss this on national radio as the Mormon Position, please, somebody, equip them with some reasonable arguments. No one is feeling like we are the wronged party here except us.

Mister Fweem said...

It's a Hobson's Choice: As lovely as it is to make a moral argument in this case, there's absolutely no legal ground to stand on. Moral stands are admirable, but aren't easily defensible. I just can't look at the Fourteenth Amendment and figure out how Prop. 8 is defensible, legally. It brought down separate but equal school systems that existed for racial segregation and could have knocked out Idaho's anti-Mormon laws. And going to the vote for something like this just invites legal trouble.