When federal courts legalized gay marriage in South Carolina last November, the state’s old-school conservatives were deep in a Southern-fried hissy fit. They pouted. They mourned. And in between portions of pulled pork and sips of sweet tea, they called to the spirit of Stonewall Jackson for guidance.
That request was apparently honored recently, too, made evident by the Rebel Yell just issued by state Attorney General Alan Wilson.
In his amicus brief recently filed with the U.S. Supreme Court, Wilson argues that blocking gay marriage is legal – and because discrimination against women was once legal, too, he says.
Even odder, this legal discrimination would be based on, of all things, the same “equal protection” 14th Amendment that southern states once vehemently opposed.
You see, women did not have full equality in 1868 when the 14th Amendment was passed. Even though this amendment guaranteed equal protection under the law to former slaves, women still couldn’t vote, own property, or enter contracts at that time.
That same 14th Amendment was cited in the Bostic v. Schaefer ruling that a federal court used to legalize gay marriage in the region, though, Wilson points out in his amicus brief. Using an “originalism” argument, Wilson says that since it didn’t apply to women at the time, then it certainly didn’t apply to gays and lesbians then, either:
The Fourteenth Amendment framers went to considerable lengths to preserve the traditional family unit, even insisting upon the subordination of married women. 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.
So if gay marriage wasn’t legal at the time the 14th Amendment was passed, then it can’t be used to legalize it today, he says. As a result, Wilson’s argument implies, until another amendment legalizes gay marriage, the previous ruling can’t force his state of South Carolina to recognize it.
If states wish to authorize same-sex marriage, they certainly may, but the Fourteenth Amendment does not mandate they do so.
Attorney General Wilson is the son of Congressman Joe “you lie” Wilson, who represents the state’s 2nd Congressional District.