You're correct that racial integration and interracial marriage weren't covered by the 14th Amendment. The Warren Court was engaging in judicial activism when it said they were. I'm not against those things, I'm just noting that the court overstepped its bounds.
You see, once you allow the government to break the law to do a good thing, you set the precedent for it to break the law routinely. Anytime the court oversteps its bounds, and people call for the judges to be reigned in, someone will pop up and say, "Oh, I suppose you want us to go back to racial segregation and bans on interracial marriage as well." And thus, the court just keeps expanding its power.
I disagree with your opinion on gay "marriage". I don't think people outside of Massachusetts would give a damn if they legalized it or not if it weren't for the judicial threat. But when it became legal there because of a dictatorial judicial decree, and when there's a threat looming over us of the federal courts spreading it to our states against our will, that's what causes our concern.
You're correct that the Constitution is there to protect the minority (at least in part) but that doesn't mean every demand of every minority is elevated to some specially protected status. Scalia's belief is not that the attitude of the population determines whose CONSTITUTIONAL rights are protected. His belief is that the majority has a right to prevail when dealing with matters that are NOT IN THE CONSTITUTION. He also believes that his fellow judges shouldn't grant special privileges to group A and not group B, just because group A is fashionable with the cocktail party crowd and group B isn't.
Why have courts been so willing to entertain demands for gay "marriage" but not polygamous marriage? Neither one is covered by the 14th Amendment. Neither one is popular with the general public. But gay "marriage" is popular with elite people in the media, political, and academic communities, while polygamous marriage doesn't much interest them. Gays in general are popular with that crowd, so liberal judges cater to gays in ways they would never cater to a group that was considered "gauche" instead of "chic". That's what happened in Romer.
The beliefs of the authors and ratifiers of the 14th Amendment are paramount. Otherwise, we're simply living under a judicial despotism since that amendment has enough vagueries in it to produce anything once the original meaning is discarded. Does the Equal Protection Clause mean there can be no progressive taxes? Does it mean prestige colleges can't charge high tuition since that keeps poor people out? You might note that the college may be private and thus not covered by the 14th, but the court itself has said that if even a penny of government aid goes to the school, the school is a branch of the government from a constitutional standpoint. What if a boy wants to live in the girls' dorm?
You see, once you toss aside the original meaning, it can mean anything in theory. In practice, of course, it means anything elite liberals are interested in. If owning kangaroos became a craze tomorrow among elite liberals, and they launched a political crusade over it that drew the support of Hollywood, the Times editorial board, and the beltway wine & cheese crowd, we'd soon have a judge somewhere issuing a ruling that the right to own a kangaroo is fundamental and that local ordinances against it violate the Equal Protection Clause by permitting dogs & cats but not kangaroos. If you asked whether the right to own an anteater is fundamental, the answer would be no because there's no faddish political movement on behalf of owning anteaters.
That's not what I was saying. Nothing specific was covered within the text of the 14th Amendment, though the black codes was the driving force behind the amendment. Had Congress intended it for only specific acts, it should have put that into the amendment. By not doing so, we have only the language of the amendment. And by the amendment's language, miscegenation and segregation were clear violations without any rationale from the states.
I disagree with your opinion on gay "marriage". I don't think people outside of Massachusetts would give a damn if they legalized it or not if it weren't for the judicial threat. But when it became legal there because of a dictatorial judicial decree, and when there's a threat looming over us of the federal courts spreading it to our states against our will, that's what causes our concern.
Well, I will admit the anti-gay lobby did have an effect on the attitude of the people, but most states that voted for an amendment did so with large margins. So whether Massachusetts got them moving in that direction, or the fear of federal intervention (not likely), who's to say?
Scalia's belief is not that the attitude of the population determines whose CONSTITUTIONAL rights are protected. His belief is that the majority has a right to prevail when dealing with matters that are NOT IN THE CONSTITUTION.
No, Scalia spoke directly about customs and the beliefs of the majority. As for something not being in the Constitution, how do you judge any act within the scope of the 14th Amendment, since no specific acts are cited? The rights of the minority to be treated the same as the majority under the law is the issue. If they establish a case that they were not, then the 14th Amendment does not say, what does the majority of citizens want? It requires a reason for that difference in treatment, ie: the black codes.
Why have courts been so willing to entertain demands for gay "marriage" but not polygamous marriage?
I'm only aware of two challenges to state laws in the last 110 years. Both found for the state, as both saw the state as having a legitimate reason for the law. One was fairly recently, I believe (not sure).
That's what happened in Romer.
Romer basically said that a class of citizens could not seek redress no matter what the discrimination, and that violated their due process rights.
Does the Equal Protection Clause mean there can be no progressive taxes? Does it mean prestige colleges can't charge high tuition since that keeps poor people out?
No, because neither selects groups for disparate treatment. If the tax code said homosexuals had to pay a 35% rate for their income, but others with the same income had to pay 28%, then that would be a 14th Amendment issue. Same with the college.
What if a boy wants to live in the girls' dorm?
Pretty easy to show a compelling reason for not allowing it. I do think the courts are now looking at restroom and dorm issues as they pertain to trans-gendered? (is that the right term?).
If you asked whether the right to own an anteater is fundamental, the answer would be no because there's no faddish political movement on behalf of owning anteaters.
If a law said that Hispanics cannot own anteaters, but others can, you would have a 14th Amendment issue. See the difference?