South Carolina justifies same-sex marriage ban by arguing that women once lacked basic rights
Female minister performs a same-sex marriage ceremony (Shutterstock)

South Carolina officials filed an amicus brief with the Supreme Court that argued banning same-sex marriage was constitutional because the Fourteenth Amendment originally did not prohibit states from discriminating against women, Slate’s Mark Joseph Stein reports.


The amicus brief -- filed by amicus curiae, or "friends of the court," meaning people who are not a party to a case but who have a vested interest in a particular outcome -- addressed the question, "Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?"

The answer, according to South Carolina, is that it does not -- because although the anachronistic "views of the Fourteenth Amendment's framers are not those of the State today...such evidence is, nevertheless, reflective of the Amendment's original meaning which we believe controls this case."

The state is interpreting the Amendment in accordance with the "originalist" school of judicial interpretation, which privileges the intent of the authors at the time a law was written. According to the state, then, because the Fourteenth Amendment explicitly allowed states to determine whether married women could own property or sign contracts without their husband's consent, it also granted states the right to determine who could be married -- so long as they didn't discriminate on the basis of race.

"The framers," the state claims, "insisted upon leaving untouched those state laws depriving women of basic rights upon marriage to a man." The only marriage-related Fourteenth Amendment restriction, South Carolina argues, involved cases of miscegenation. It "barred racial discrimination, certainly, but its dicta regarding the fundamental right to marriage does not suggest anything about same-sex marriage."

Because the Amendment's equal protection clause only originally applied to matters of race -- and didn't even apply to married women in some states -- South Carolina argues, as Stein put it, that "[i]f the Fourteenth Amendment permits discrimination against married women, it surely also allows discrimination against gay people who wish to wed."

"In fact," he added, "according to South Carolina, the Fourteenth Amendment forbids only racial discrimination, leaving states free to disadvantage women and gays in any way they wish."

As outrageous as Stein's summary of the state's position might sound, it is, in fact, the argument being proffered by South Carolina's highest legal authorities.

"The Fourteenth Amendment framers went to considerable lengths to preserve the traditional family unit, even insisting upon the subordination of married women," they write. "With this in mind, they did not, by any stretch of the imagination, contemplate that same-sex marriage was required by the Amendment or its Due Process Clause."

"If states wish to authorize same-sex marriage, they certainly may, but the Fourteenth Amendment does not mandate they do so," they conclude.