One key problem with originalism—the theory that the Constitution should be interpreted as its drafters understood it—is that the men who wrote our constitution had some pretty barbaric views about humanity. The author of the Bill of Rights, James Madison, owned hundreds of slaves. The same Congress that passed the 14th Amendment segregated schools and opposed women’s suffrage. Under originalist theory, almost every landmark equality case, including Brown v. Board of Education, is almost certainly wrong. Few originalists, however, have the courage to admit that their theory would lead to an appallingly unequal and unjust America.
South Carolina, it turns out, is the glittering exception to this cowardice. In a jaw-dropping amicus brief recently filed with the Supreme Court, the state’s attorney general argues for a truly originalist understanding of the 14th Amendment, insisting that the Constitution permits discrimination not just against gays, but also against women. This argument is as morally abhorrent as it is historically accurate. And South Carolina deserves some credit for having the chutzpah to raise it.
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.
The state may well have its history right here. Congressional records show that the men who drafted the 14th Amendment were pretty adamant that their measure wouldn’t force states to recognize married women as independent humans with rights of their own. John Bingham, the chief framer of the amendment, assured one sexist congressman that he “need not be alarmed” that the measure would alter “the condition of married women,” since it would leave intact state property laws. Another framer, Samuel Shellabarger, explained that under the equal protection clause, states could still “deprive women of the right to sue or contract or testify.”
Of course, the Supreme Court has repeatedly held that laws disadvantaging women receive heightened scrutiny under the equal protection clause—and even the current court’s most conservative justices would likely strike down laws that deprived married women of property rights. As South Carolina’s brief demonstrates, the question in the gay marriage cases is not whether the court wants to adopt an originalist understanding of the 14th Amendment, but how honest it wants to be about rejecting one. The justices could restore the provision’s original meaning and usher in a new era of state-sponsored sexism. They could continue to be selectively faithful to the bigoted views of dead white men and laugh off gay rights. Or they could choose to honor the broader constitutional principle embedded in the 14th Amendment: the radical, sweeping, revolutionary idea that all Americans are born equal.
Update, April 9, 2015: The South Carolina solicitor general, as well as a representative from the office of the attorney general, have asked us to note that their state does not wish to implement the sexist laws outlined in its brief—though it could if it wanted to.