Posted on 05/28/2006 5:33:55 PM PDT by madprof98
In 1964, just one congressman from the Deep South, Atlanta's Charles Weltner, voted for the Civil Rights Act. For all practical purposes, his righteous leadership on civil rights — he also supported the Voting Rights Act — cost him his congressional career.
In 1966, he resigned his seat rather than sign an act of loyalty to the segregationist Lester Maddox, as Georgia Democrats insisted. But some analysts believe he would have lost the race for re-election.
Doing the right thing is difficult because it often means losing. And the typical politician is willing to lose anything — honor, integrity, dignity — but an election.
That helps explain why, during this election season, so few politicians have stepped forward to denounce initiatives against gay marriage as the cynical and opportunistic tactics that they are. They know that playing on prejudice and fear can rally a certain constituency and provide the winning margin in tight races.
It certainly worked two years ago. Republican tacticians maneuvered to add amendments against gay marriage to the ballots in 11 states, including Georgia. The result was to lure religious conservatives to the polls in large numbers, probably giving President Bush the boost he needed in the battleground state of Ohio.
This year, conservative Republicans — struggling against voter discontent over Iraq, health care and high gas prices, among other things — are desperate to bring those religious conservatives back to the polls. So they've resurrected the same tired tactic. Next month, the Senate is expected to vote on an amendment to the U.S. Constitution banning same-sex unions.
Senate leaders haven't made much of an effort to disguise the initiative as anything other than the base political ploy that it is. After a frenzy of gay-bashing during the 2004 campaign season — they thundered against gay marriage as a threat to just about every family tradition, from man-woman marriages to peanut-butter-and-jelly sandwiches — Republican leaders hadn't even mentioned the issue again. The threat disappeared for two years. Until now, when they're facing the prospect of losing control of Congress.
Given the stakes, prominent Republicans won't get in the way of a good wedge issue. Oh, first lady Laura Bush has pointed out the unfairness of a constitutional amendment. So has Mary Cheney, the vice president's gay daughter, who lives openly with her partner of 14 years, Heather Poe, and has recently published her memoirs. This month, Cheney told CNN that "writing discrimination into the Constitution of the United States is fundamentally wrong."
But it's unlikely you'll hear the vice president arguing against the amendment so pointedly on the campaign trial. While he has said in the past that he opposes it, he'd rather remind his right-wing supporters of his staunch support for the invasion of Iraq. President Bush, for his part, has spent his last pennies of political capital trying to pass a humane policy on immigration. He may not fight for an amendment banning gay marriage, but he's unlikely to get in the way of it, either.
In Georgia, meanwhile, even progressive politicians have been cowed by the state's overwhelming consensus against gay marriage. Though 76 percent of Georgia voters approved the ban two years ago, a Superior Court judge recently struck down the amendment on technical grounds. After the ruling, Gov. Sonny Perdue, a Republican, quickly announced plans for a special session of the Legislature to rewrite the ban and place it before voters again in November. His two Democratic opponents, Lt. Gov. Mark Taylor and Secretary of State Cathy Cox, rushed to support the move.
Cox's awkward leap onto the bandwagon was especially disappointing. While Taylor had supported the ban, Cox had pointed out two years ago that the amendment is "unnecessary." Georgia law, like federal law, already bans same-sex unions. But many analysts have noted that Cox is desperate to draw black voters away from Taylor in the Democratic primary for governor; black Georgians, like their white neighbors, gave their unabashed support to enshrining bigotry in the state Constitution.
Cox, like most other politicians, would rather pander to the prejudices of voters than stand by her principles. It's a perfectly human inclination — doing the safe thing, rather than the right thing.
There are never more than a handful like Weltner, who preferred losing a campaign to sacrificing his conscience. In his resignation speech, he declared, "I love the Congress, but I will give up my office before I give up my principles. ... I cannot compromise with hate."
His courage is as rare now as it was then.
She is a homoappologist or a homosexual herself who push the LIE that homosexual behavior is equal to skin color.
The homoadvocats know this is a death blow for their nomalizing movement. It puts into black letter constitutional law that marriage is not about recreational sex. Homosexuality is only about recreational sex and thus would never fit into any marriage or marriage lite relationship.
This amendment needs to keep being brought up again and again and again to expose the rinos and the democrats.
We can argue back and forth about this forever. It all comes down to whether we trust the judiciary or not. I don't. That doesn't mean they're always wrong, but they're wrong often enough to merit concern. Issues that are easily demagogued by the left, with allegations of "racism" and "sexism" and "homophobia" are particularly prone to invite judicial imperialism.
We could list examples all day. Forced busing. Racial set-asides. Women at the Citadel & VMI. Abortion. All these issues involved the Supreme Court far exceeding its constitutional authority. Even when they rule correctly there's no guarantee they won't revisit the case later and reverse themselves, as they did with sodomy laws (upheld in the 80s, but declared "unconstitutional" a couple of years ago).
Romer vs. Evans was a warning shot. It was a patently absurd decision, as well as expanding the 14th Amendment into the territory of sexual perversion. The only way Amendment 2 could have been unconstitutional is if the Constitution obligates states or localities to enact gay "rights" laws. If it doesn't, how is a state constitutional amendment preventing such laws unconstitutional? Basically, the court implied that constitutional amendments are themselves unconstitutional. Virtually every amendment places a barrier to someone enacting a law. Using the lopsided reasoning in Romer, it violates the 14th's guarantee equal protection for a state to amend its constitution to protect religious freedom, on the grounds that opponents of religious freedom have had a barrier placed in front of them while proponents of religious freedom have not.
The fact that the court hasn't taken Romer any further yet doesn't soothe me very much. They generally wait for the right time and the right case to pull off these judicial coups. They won't order nationwide gay "marriage" any time soon, but once state judicial fiats on this issue are in place in enough states, and there's a Democrat majority in Congress to kill any marriage amendment in committee, they may strike.
Then again, they may not. But I wouldn't bet on it. Our robed masters are waiting until the right time to foist this upon us.
I think it is a stimulating discussion. I don't find it at all a back and forth argument. You have made a number of good and challenging points. But as you recognize, there are two sides to almost every issue with respect to the law and the Constitution. Many here could learn from your style.
It all comes down to whether we trust the judiciary or not. I don't. That doesn't mean they're always wrong, but they're wrong often enough to merit concern. Issues that are easily demagogued by the left, with allegations of "racism" and "sexism" and "homophobia" are particularly prone to invite judicial imperialism.
I can't argue that as you have an excellent point. My retort would simply be that I am far more comfortable with the makeup of the USSC today that ever before. I am completely at ease with how they would handle a challenge to DOMA.
But I also recognize that DOMA is not the real issue here. Many here, I assume you too, want the Constitution to deny states their just power to legalize whatever they want. And that, I can never agree to. It is patently against the 10th Amendment and more, the very intent of what the framers of the Constitution intended. We have a republican form of government, not a democracy, nor a theocracy. As conservatives, we cannot pick and choose those things we will not permit states to enact within the bounds of the BOR and the 14th Amendment. We either believe in republicanism or we don't. Freedom means the freedom to make mistakes. And if Massachusetts fails to amend its constitution to ban gay marriage, I believe it has made a mistake. But it is their mistake, not mine or yours.
Even when they rule correctly there's no guarantee they won't revisit the case later and reverse themselves, as they did with sodomy laws (upheld in the 80s, but declared "unconstitutional" a couple of years ago).
It was a decision that upheld one of the basic rights we have, that of privacy. Again, if only a certain segment of society has the right to privacy in their own home, no one really has it. How many married couples (heterosexual) engage in sex not considered acceptable to the religious right? 90%..95%? Do they have a greater right to privacy than homosexuals? Why? I more often than not tend to agree with decisions that tend to ratify the basic human and natural rights of people over the powers of the state.
Romer vs. Evans was a warning shot. It was a patently absurd decision, as well as expanding the 14th Amendment into the territory of sexual perversion.
To the contrary, what it did was to say that you cannot exempt an entire group from recognition of their rights under the 14th Amendment.
The only way Amendment 2 could have been unconstitutional is if the Constitution obligates states or localities to enact gay "rights" laws. If it doesn't, how is a state constitutional amendment preventing such laws unconstitutional?
The decision said that a state constitutional amendment cannot exclude a group of people from seeking specific legal protection from discrimination. And the amendment forbid local governments from enacting such protective laws. The decision gave nothing new to gays and lesbians, etc,. Nor am I aware of any negative fallout from the decision.
Basically, the court implied that constitutional amendments are themselves unconstitutional.
Not at all. But state constitutions cannot have the effect of denying those rights contained within the BOR or the 14th Amendment. Would you accept a state constitutional amendment banning guns within the state?
Using the lopsided reasoning in Romer, it violates the 14th's guarantee equal protection for a state to amend its constitution to protect religious freedom, on the grounds that opponents of religious freedom have had a barrier placed in front of them while proponents of religious freedom have not.
That's an interesting argument. But first, states have no rights. Only persons have rights, including those in the 14th Amendment. I imagine, almost every state constitution contains within it an article protecting the religious rights of individuals, similar to the 1st Amendment. But the court would likely strike down any state amendment reflecting religion that had the effect of denying any rights to others. Marriage, BTW, is not a right recognized by any court.
They won't order nationwide gay "marriage" any time soon, but once state judicial fiats on this issue are in place in enough states, and there's a Democrat majority in Congress to kill any marriage amendment in committee, they may strike.
To date, only 1 state allows gay marriage, and that will be short lived. There is no move afoot across the nation in this area. At least 3 gay marriage amendments have been struck down, each a result of improper wording. Every state is in control of this issue, and the USSC will not in my opinion, alter the landscape.
There's the big lie concerning the sodomite marriage issue. GA law and federal law won't mean squat when liberal judges decide that those laws are unconstitutional. There is no way to avoid the abomination of homo marriage becoming normalized in the entire US by the judiciary without passing and ratifying a Constitutional Amendment.
I'm going into further detail here on the absurdity of Anthony Kennedy's reasoning in Romer.
The constitutional guarantee of Equal Protection of the Law was never by any stretch of the imagination intended to apply to homosexuality, a deviant sexual fetish. You admitted that in an earlier pose when you asserted that the 14th Amendment could not be used to void state laws against gay "marriage", as it definitely was used to void state laws against interracial marriage, because the 14th dealt with racial discrimination, not discriination against gays.
I responded that the Supreme Court has unconstitutionally expanded the 14th Amendment far beyond its intended limitations. It now applies to gender issues (as in the Citadel and VMI cases). And Romer expanded it to include sex perversity.
In an effort to justify these judicial power grabs, the court created the doctrine of "legitimate government interest". If the elected branches of government can prove to the Supreme Court that they have a "legtimate government interest" in treating men differently from women (for example) then the court will allow it. Otherwise they won't. In practice, what this means is that the court strikes down the laws they disagree with, while upholding the ones they don't have any problem with. They simply announce that there was a "legitimate government interest" for the latter, and not the former.
They get to decide what's "legitimate". The problem is, the voters were supposed to be the ones to decide that on issues outside the scope of the 14th Amendment. It's not the court's place to decide there's no "legitimate" reason for VMI to be all male. Nor is it the court's place to decide that Amendment 2 had no "compelling state interest" behind it. The fact that A) the voters approved it and B) nothing in the Constitution addresses it one way or the other is compelling enough reason for the court to uphold Amendment 2.
So there's no question the court exceeded the 14th Amendment by expanding it to "protect" homosexuals as a class. But even so, it still wouldn't be unconstitutional to pass Amendment 2. Here's why:
The 14th Amendment prevents discrimination by government, not by private individuals. Persons wishing to pass laws prohibiting discrimination by private individuals may seek such passage, but only within existing legislative parameters. There is no constitutional expectation that such laws will be passed under the 14th Amendment.
Suppose I'm a pet owner, and I'm having trouble finding a good apartment to rent because so many landlords won't allow pets. I contact a lawyer and ask him to sue the landlords for discriminating against pet owners. The lawyer turns down the case because THERE IS NO LAW IN MY STATE PROHIBITING LANDLORDS FROM REFUSING TO RENT TO PET OWNERS. So, I launch a lobbying campaign to pass such a law in the state legislature. Lots of my fellow pet owners join me. A bill to prohibit landlords from refusing to rent to pet owners is introduced in the legislature and has a shot at passing.
But the landlords trump me. They go straight to the voters, warning them that the law I'm seeking to pass is a threat to the rights of property owners. The voters agree, and approve a state constitutional amendment barring the state government from enacting a law requiring landlords to rent to pet owners.
I've thus been blocked from seeking enactment of the law I want passed. I now can't get that law passed unless I first manage to repeal the state constitutional amendment. A barrier has been thrown in my way, and in the way of a class of people (pet owners who rent). That barrier doesn't apply to other classes of people. Someone wanting to pass a law to prohibit discrimination by landlords against the blind, for example, would still be free to pass their law. But I can't pass mine.
So is the class of people in question (pet owners who rent) being victimized by this state amendment? Are they being denied equal protection? No, BECAUSE THERE IS NO OBLIGATION ON THE PART OF THE STATE TO PROHIBIT PRIVATE DISCRIMINATION AGAINST PET OWNERS. If there was such an obligation, I wouldn't have needed to lobby for the law in the first place.
AND THERE IS NO OBLIGATION FOR THE STATE OF COLORADO TO ENACT LAWS BANNING DISCRIMINATION AGAINST GAYS. The court's idiotic reasoning in Romer, which was that Amendment 2 prohibited a class of people (homosexuals) from seeking such laws, is an assault on the very concept of constitutional government. The very purpose of constitutional limitations on state authority is to erect a barrier to such authority. By definition, that places a barrier on any class of citizens wanting to exert the authority in question.
A constitutional provision setting Senate terms at six years places a barrier in the way of any class of citizens who want Senate terms to be four years. Is that class of citizens thus victimized by discrimination under the 14th Amendment? How ridiculous it would be to make such a claim! Yet the Supreme Court made it regarding homosexuals as a class in Romer, which is easily one of the five most moronic rulings the court ever rendered, and it's why Scalia's dissent is such a classic.
TYPO: "earlier pose" in the second paragraph should be "earlier post".
How can you possibly believe that? The USSC as it stands now might not overturn state and federal laws against homo marriage, but what about 10 or 20 years from now after several Democrat administrations and Congresses appoint and confirm liberal replacements for several of the aging originalists on the court now? Thomas and Scalia aren't getting any younger, and Kennedy, for whatever he's worth now and then, is on the far side of 70 I believe.
We may as well get used to Democrats running everything again for several election cycles, after the damage done by their idiotic immigration policies Republicans are in for a long dry spell.
Before Roe was decided not many people thought that the court could find anything in the text of the Constitution or in precedent that would justify legalizing abortion. Well the court couldn't find anything there, so it just made up a mythical "penumbra" out of thin air and foisted it on the American people as irrevocable law. Homo marriage will be forced on the people the same exact way if an amendment isn't passed and ratified soon, watch and see.
One of my favorite movie quotes comes from the 1954 Japanese classic, THE SEVEN SAMURAI. A little village is being terrorized by bandits, so they recruit seven samurai to defend the town. But one man worries that his pretty teen daughter might be seduced by one of the samurai. The old village elder says, "Don't worry about your beard when your head's about to be chopped off!"
Worrying about states rights on the gay marriage issue falls into the same category. The Supreme Court has already breached states rights on marriage (Loving vs. Virginia) and homosexuality (Romer vs. Evans). They've held that homosexual activities are a protected right (Lawrence sodomy ruling).
In other words, states rights on these issues have already started eroding, and all the ingredients are in place for a complete eradication of states rights on this issue if the Supreme Court puts Loving, Romer, and Lawrence together, along with a dose of sociology about how "marriage is an evolving institution". Throw in the fact that the media, the law journals, and the "beautiful people" all want gay "marriage" and we're over halfway there already.
Anyone who thinks the court will be able to long resist this pressure is kidding themselves.
Why don't you just admit that either you want to see happen or don't care one way or the other if the abomination of homosexual marriage is forced by an unelected, unnaccountable judiciary on the large majority of American people who don't want it?
You continue to ignore the 600 lb gorilla in the room.
HOW COMFORTABLE WILL YOU BE WITH FUTURE COURTS APPOINTED BY PEOPLE LIKE HILLARY OR MCCAIN AND CONFIRMED BY PEOPLE LIKE REID AND PELOSI??
Do you live in a time warp? The current makeup of the USSC will change within the next one or two presidential terms, and probably not for the better. And even with the current court there is not much to reaasure anyone that it wouldn't strike down laws against homosexual marriage.
This issue is no small thing, it can and probably will bring about radical changes in American society that will doom whatever chances we may have had to return the US to a morally and ethically righteous nation like the one our Christian forefathers left us.
Let's get it done. You are free to rage in silence.
More excellent analysis.
Your effective response is fatally flawed in that your premise is illegitimate. An individual claiming a subjective self-declared disorder or an individual that chooses to engage in homosexual sex does not possess an innate objective attribute constituting membership in a "class of individuals" meriting special rights or privelege. Maybe, if the left can pass an AHDA (American Homosexual Disorder Act) measure this might some day be the case -but not today...
I don't want the USSC overturning state laws. The citizens of that state have that in their power. As for 10 or 20 years from now, if the Democrats are in power that long, gay marriage will be the least of your concerns. As for the replacements on the USSC, only the liberals will soon retire. All four are far older than the conservatives. For the next few years, I see no threat to DOMA. But we are not talking about the same thing. My only concern is DOMA. Most on this thread want all homosexual unions including marriage barred from legalization in any state. That I am firmly against.
We may as well get used to Democrats running everything again for several election cycles, after the damage done by their idiotic immigration policies Republicans are in for a long dry spell.
Doubt it. Ever since FDR, Democrats have worn out their welcome very quickly. I see nothing in the current leftist leaning Democrat Party that hints at a change in that pattern.
I think you may have me confused with everyone else here on this thread. I'm about the only one not in a rage. I may also be the only conservative here.
You have slightly misquoted me. Yes, the 14th Amendment was ratified to ensure that freed Blacks did not face the obvious discrimination that would in effect keep them in slavery in spite of the 13th Amendment. But the Amendment applies to everyone. The courts found that Amendment 2 effectively cut out a portion of the population from laws preventing discrimination. In other words it was a broad brush that forbid any laws in the state from addressing discrimination relating to sexual preference. That clearly was not the intent of the amendment, as I voted for it along with a majority of the state. But the court said it could have that effect, which permits unequal application of the law, contravening the 14th Amendment. So be it. Homosexuality is not the issue, but the court ruled that such a broad brush could permit massive discrimination in employment, housing and other areas normally considered to be free from discrimination. It truly has nothing to do with the issue at hand.
I responded that the Supreme Court has unconstitutionally expanded the 14th Amendment far beyond its intended limitations. It now applies to gender issues (as in the Citadel and VMI cases). And Romer expanded it to include sex perversity.
Well here is the text of Section 1:
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.
Clearly this Amendment applies to all citizens, regardless of race, gender, religion or other defined groups. I don't know how you can say that, regardless of the reason for the amendment, that it does not apply to everyone. I don't agree with every court interpretation of the Amendment, but then neither does anyone else. Suffice is to say that Colorado Amendment 2, in the eyes of the court, was a law designed to cut out a segment of the population and permit discrimination not permitted with everyone else.
In an effort to justify these judicial power grabs, the court created the doctrine of "legitimate government interest". If the elected branches of government can prove to the Supreme Court that they have a "legtimate government interest" in treating men differently from women (for example) then the court will allow it. Otherwise they won't.
Well the 11th Circuit decision in the Florida adoption case certainly doesn't describe that. The court didn't necessarily agree with Florida, but stated that in the absence of proof to the contrary, they would not substitute their judgment for that of the state of Florida. In other words, Florida had stated a legitimate interest in reserving adoptions for only heterosexual couples. That is somewhat amazing given that Florida permits homosexuals to participate in foster care. So that speaks volumes for a state's legitimate interest.
They get to decide what's "legitimate". The problem is, the voters were supposed to be the ones to decide that on issues outside the scope of the 14th Amendment. It's not the court's place to decide there's no "legitimate" reason for VMI to be all male.
In the VMI case, the state failed to make a compelling argument (as it did in the Florida case) that it had a legitimate reason for keeping women out, especially given the history of women in the armed forces. Certainly it's subjective, because every case is different. But the 14th Amendment was designed primarily to to counter the tyranny of the majority.
Nor is it the court's place to decide that Amendment 2 had no "compelling state interest" behind it. The fact that A) the voters approved it and B) nothing in the Constitution addresses it one way or the other is compelling enough reason for the court to uphold Amendment 2.
Obviously the State of Colorado failed to articulate a compelling state interest in refusing to permit any laws addressing discrimination towards homosexuals. As for the Constitution, the 14th Amendment pretty much sums it up.
So is the class of people in question (pet owners who rent) being victimized by this state amendment? Are they being denied equal protection? No, BECAUSE THERE IS NO OBLIGATION ON THE PART OF THE STATE TO PROHIBIT PRIVATE DISCRIMINATION AGAINST PET OWNERS. If there was such an obligation, I wouldn't have needed to lobby for the law in the first place.
You have developed a rather intricate straw man that no court would consider because as far as I know there has never been a class of people so labeled. Nor is their a history of discrimination against such a class as there has been against other classes including race, gender, religion, national origin, sexual preference, etc. There would not be a compelling state or national interest served. There certainly is with this issue.
And if there were ever such an amendment, certainly the association of pet owners could bring a cause of action and see where it goes.
AND THERE IS NO OBLIGATION FOR THE STATE OF COLORADO TO ENACT LAWS BANNING DISCRIMINATION AGAINST GAYS.
I agree, but that was not the essence of Amendment 2. Amendment 2 prohibited laws from any jurisdiction within the state from enacting laws to prevent discrimination against gays. That is quite different from your statement.
The court's idiotic reasoning in Romer, which was that Amendment 2 prohibited a class of people (homosexuals) from seeking such laws, is an assault on the very concept of constitutional government.
I doubt you would take that position if it were say the Catholic Church who had a history of being discriminated against in a particular state, and a constitutional amendment were passed making sure that no law was enacted to protect the Church against such discrimination.
The very purpose of constitutional limitations on state authority is to erect a barrier to such authority. By definition, that places a barrier on any class of citizens wanting to exert the authority in question.
No state may enact any laws which in effect serve to abrogate those rights contained within the BOR or the 14th Amendment.
A constitutional provision setting Senate terms at six years places a barrier in the way of any class of citizens who want Senate terms to be four years. Is that class of citizens thus victimized by discrimination under the 14th Amendment?
A person has a constitutional right to be free from discrimination unless a legitimate state interest justifies the discrimination. This means all persons. The 14th Amendment in no way protects the interests of persons on the basis of wants. If the class of citizens wants the Senate term to be changed, the Constitution clearly provides guidance on how to effect such change. And it is available to all persons, thus no discrimination.
How ridiculous it would be to make such a claim! Yet the Supreme Court made it regarding homosexuals as a class in Romer, which is easily one of the five most moronic rulings the court ever rendered, and it's why Scalia's dissent is such a classic.
I'm not sure how you reconcile a Senate term of 6 years with the Romer decision where a class of persons were excluded from the same protections available to all other classes. As for Scalia, almost no USSC decision is a 9 to 0 vote. There is almost always a dissenting vote.
You're going to get that whether you want it or not. An activist court appointed by the next Democratic president will make sure you do. Your alleged concern over Thur DOMA is well founded, a liberal activist court will strike it down without a second thought.
The citizens of that state have that in their power.
The citizens of your state or any state are powerless to counteract decisions of the USSC. If they were not Roe would not be law in well over half the states.
As for 10 or 20 years from now, if the Democrats are in power that long, gay marriage will be the least of your concerns.
Not so. If not barred by an amendment, homosexual marriage will be a major concern for me and for every American in the future whose moral compass isn't as screwed up as that of the small minority of Americans who either want sodomite partners given the same status as marriage between opposite sexes, or those like you who apparently don't care either way.
I probably won't be here 20 years from now and maybe not even 10. But God willing my children and grandchildren will be, and if the US has sunk so deep into the immoral sewage being relentlessly promoted 24/7 by the Hollywood-SF-NYC libertine axis as to allow the sacred institution of marriage to be destroyed by catering to the perverted desires of 2% of the population, they will be as concerned as I am now about the survival of an America which will have turned it's back on every principle of morality, decency, and justice that it's founders and patriots have fought, bled, and died for over the last 230-odd years. That may not concern you, but it does those of us who care about the moral fiber of the environment in which our children and their children are raised and nurtured.
You're very wrong about this, and here's where you're making your mistake. You're assuming that because the 14th Amendment applies to everyONE it must apply to everyTHING, and it doesn't. Nor does it apply to every person on a personal level that makes every characteristic of that person an issue for constitutional litigation.
There are numerous examples of this, but one of the best is the existence of the 19th Amendment (female suffrage). It was ratified more than FIFTY YEARS after the 14th. But if the 14th Amendment gives all of us a constitutional right to be free from discrimination (as you claim) why was the 19th Amendment necessary? Why did the Suffragettes spend decades working to amend the Constitution when the 14th Amendment protects us all from "discrimination"?
The answer is very simple. The 14th Amendment doesn't protect us all from every form of discrimination. Did the Supreme Court demand that states provide them with a "compelling state interest" to justify excluding women from voting after the 14th was ratified? Of course not.
This "compelling state interest" concept is a FABRICATION of modern activist judges. It has no constitutional basis whatsoever.
The 14th Amendment didn't prohibit sex discrimination in voting because A) it didn't apply to gender discrimination and B) it didn't apply to voting. Likewise, the 14th doesn't apply to homosexuality, nor does it apply to discrimination by private parties.
How can that be, you may ask? Well, suppose a black woman was kept off a jury because she's black. She could claim racial discrimination on an equal basis with a black man. But if she was kept off for being a woman, the 14th, as written, didn't apply. The 14th applies to everyONE, but not everyTHING. The 14th was actually intended to be a quite modest amendment, not the constitutional revolution it turned into starting with the Warren Court.
You asserted that I created a straw man by fabricating the category "pet owners who rent" as a protected 14th Amendment class. It is a fabricated class, but so are homosexuals. Neither pet owners nor homosexuals are covered by the 14th Amendment AS pet owners or homosexuals. When the Supreme Court in Romer expanded the 14th Amendment to include homosexuals AS homosexuals, it was rewriting the 14th Amendment. My point was that if homosexuals are a class under the 14th, why aren't pet owners? Why aren't high income people a "class" protected from the "discrimination" of progressive taxation? The court in Romer carved out a special set of rules for homosexuals. They basically said that homosexuals can't have any constitutional barriers erected against laws they wish to pass.
But that's absurd. We couldn't even begin to list the different groups of people affected by all the different constitutions in our country.
And, BTW, if it's unconstitutional for a state to amend their constitution to prohibit laws banning discrimination against gays, how can they amend their constitution to prohibit gay "marriage"? Both amendments prevent homosexuals from lobbying for proposals they favor. In fact, the one banning gay "marriage" does actually involve discrimination by government, while Amendment 2 dealt with private discrimination.
Government isn't under any constitutional obligation, under the 14th Amendment or any other provision, to ban discrimination by private parties. Until around 1964, they didn't. Since then, they've passed a ton of laws, really bordering on overkill, banning various forms of private discrimination, but they don't have to. If Congress wanted to, they could repeal the Civil Rights Act of 1964 tomorrow. Any state in the union could likewise repeal their state laws prohibiting, for example, racial discrimination in housing, or gender discrimination in employment.
Most states don't even have laws banning private discrimination against homosexuals, and they don't have to have them. It's perfectly constitutional not to have them. And if it's constitutional not to have them, it's constitutional to put the policy of not having them in the state constitution.
If a state in 1886 had amended their state constitution to ban women from voting, would it have violated the 14th Amendment? Of course not. If it was legal under the 14th to deny women the vote (which it was), how could it be unconstitutional to place that policy in a state constitution?
That's why Romer was such a ludicrous ruling, above and beyond it being unconstitutional. This nonsense about states having to provide the Supreme Court with a "compelling state interest" is just a creation of judicial activists. The Supreme Court isn't interested in banning ALL discrimination, for the simple reason that laws discriminate all the time if you think about it. Is it "discrimination" if a state funds a school for the blind, but not for the deaf? Is it "discrimination" if they fund childbirth, but not abortion? Is it "discrimination" if they ban housing discrimination against homosexuals but not adulterers? Is it "discrimination" to tax some items and not others?
If the courts banned ALL discrimination, society couldn't function. In addition, the liberal judges on the court like some types of discrimination (higher tax rates on the rich, reverse discrimination against white males, restrictions on funding parochial schools).
So our robed princes created the "compelling state interest" doctrine to transfer decision making about discrimination from the voters and their elected representatives to (who else?) liberal judges. If they pesonally support a particular act of discrimination, or if involves some matter that doesn't ideologically interest them, the judges announce that the state has a "compelling interest" to practice the discrimination. If they personally disapprove of a particular act of discrimination, they'll find there's "no compelling interest" for it. Like the unenumerated right to privacy in Griswold and Roe, it transfers societal decision making from us to the judges.
And thus Romer is an utter abomination.
One of the problems we have today is that the 14th Amendment has been expanded far beyond its intended scope. Liberals, and even many "politically correct" conservatives, think the 14th is a grandiose, sweeping constitutional prohibition against any and all "discrimination". Of course, it's simply taken as a given by these people that all discrimination is bad and unjustified.
In fact, the 14th was intended to be a far more modest amendment. I mentioned in the previous post that it didn't prohibit discrimination against women in voting. It clearly didn't, or there would have been no 19th Amendment five decades after the 14th, and no need for all those years of Suffragette activism and lobbying.
In addition, the 14th didn't grant voting rights to blacks, either. It took the 15th Amendment to do that. Why was there a need for a 15th Amendment if the 14th prohibited any and all discrimination?
In reality, the section of the 14th which guarantees us all the "equal protection of the laws" was intended to have a very small reach. Basically, it was intended to give the freed slaves access to the courts, allowing them to sue and collect legal damages on an equal basis with whites. That's what "equal protection of the laws" meant.
It didn't mean every law had to treat everyone the same, which is why it didn't give blacks or women the vote. It certainly didn't apply to private acts. If a landlord refuses to rent to blacks, there's absolutely nothing in the 14th Amendment to force him to do otherwise. The legislative branch can pass laws to prohibit such discrimination, but they don't have to. It's just their option.
This idea that the 14th Amendment bans all "discrimination" unless the discriminating party can prove to liberal judges that they have a "compelling" reason to discriminate is without constitutional basis. The 14th wasn't intended to force state military academies to admit women, or to require a state to pass a law banning racial discrimination in private employment, or to ban a youth group from using the public parks unless they agree to provide the kids with gay role models.
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