14th Amendment didn’t guarantee gay marriage rights

Last June the Supreme Court decided they had found a “fundamental right” to same-sex marriage in the 14th Amendment. The 14th Amendment was one of the three Civil War amendments; the 13th which freed slaves, the 15th which gave all people the right of vote no matter what race or previous condition of slavery.

In 1868, the 14th Amendment was ratified. Briefly, it was needed because many of the southern states ignored the Civil Rights Act of 1866, which gave the freed slaves the same rights as other citizens. The problem was that southern states began enacting what is known as “Black Codes,” which were used to try and control the freed slaves. These Black Codes used a system of bound apprenticeship, labor restrictions, limits on property ownership, and many other ways to try to re-enslave former slaves.

Congress was afraid that if these rights, such as the right to sue, to make and enforce contracts, to give evidence, inherit and purchase property, lease, sell, hold and convey real and personal property etc. that a future Congress may try, with legislation, to revoke these rights of the freed slaves. It was about making freed slaves full and equal citizens. Basically to make sure Congress couldn’t do away with any of these rights, they decided an amendment was needed to embody these rights, thus the 14th Amendment.

In all the reading I’ve done on the 14th Amendment, I’ve found nothing being written about the inequality of “marriage.” When the 14th Amendment was ratified, every state limited marriage to one man and one woman. It was uncontroversial both socially and constitutionally. Such legal scholars and justices as Felix Frankfurter, an FDR New Deal justice, Hugo Black, Louis Brandeis, and ex president and justice William Taft and many others found no “fundamental right” for same sex marriage. How could the Congress that worked on and ratified the 14th and all the above esteemed legal scholars and justices have overlooked this “fundamental” right for almost 150 years? These five justices use the Court to make a “ fundamental right” to overrule a right that is actually written in the Constitution, the 1st Amendment. One doesn’t have to be “anti-gay” to notice this.

I believe that the court has become very political and rather than interpret the law, they have allowed their political values to heavily influence their decisions. Their “reasoned judgment” is enough to make people like the photographer and baker, who have deeply held religious faith, participate in professional actions that are contrary to their faith or be fined or lose their profession. Supreme Court justices have been able to redefine the definition of marriage that has lasted for thousands of years. The great irony here is that the 14th amendment that was supposed to help make America a more perfect union, is now being used to destroy religious freedom.

The writer lives in Murrells Inlet.

This story was originally published September 19, 2015 at 1:15 PM with the headline "14th Amendment didn’t guarantee gay marriage rights."