South Carolina argues to Supreme Court that it can discriminate against gays AND women

Anybody else worried about how seriously some of these guys are going to take this argument?

South Carolina wants to be able to continue to ban gays and lesbians from marrying each other. They want to do that so much that they filed an amicus brief with the Supreme Court that they should continue to be able to do so. In it, they make an "originalist" argument that if the Constitution is read just as its drafters understood it, gays can be discriminated against because women can be discriminated against. Mark Joseph Stern at Slate has all the crazy.

Here’s the gist of South Carolina’s fascinatingly sexist argument. The state wants to prove that the 14th Amendment—which guarantees "equal protection of the laws" to every "person"—was not intended to displace state marriage laws. And what did those laws look like at the time? One major feature: In many states, married women were not permitted to own property or enter into contracts and had no legal existence apart from their husbands. According to South Carolina, the framers of the 14th Amendment explicitly preserved the rights of states to deprive married women of the ability to function independently from her husband. This right to deprive married women of basic liberties, South Carolina argues, is enshrined in the 10th Amendment and is not at all undercut by the 14th Amendment’s guarantee of equality.

The crux of South Carolina’s brief, then, is this: If the 14th Amendment permits discrimination against married women, it surely also allows discrimination against gay people who wish to wed. In fact, according to South Carolina, the 14th Amendment forbids only racial discrimination, leaving states free to disadvantage women and gays in any way they wish.  READ MORE