Fourteenth Amendment versus DOMA – Supreme Judicial Activism

It’s time for another installment of Professor H.O. Hell’s Constitutional Lectures You Wish You Didn’t Read.


In this case, we’re covering the relatively recent strikedown of the Defense of Marriage Act by the Supreme Court. One of the cornerstones of the argument against DOMA was that the Fourteenth Amendment guarantees rights to all. It’s even sort of true. Sort of. The thing is that it goes only one way. It protects citizens from States interfering in rights granted by the Federal government. It was part of the reforms rammed down the throats of the South after the Civil War (you need to rejoin the Union and we won’t let you unless you agree to these Amendments).

The point here is that the Fourteenth Amendment was intended as a way to stop Jim Crow. As we all know, that failed wonderfully because of judicial activism which ruled that it only applied to the federal government. It’s hard to understand how they kept a straight face while presenting that decision. People think judicial activism is entirely something perpetrated by liberals trying to make the world a better place and forget that many things have plenty of history with “conservative” persons (perhaps stagnant reactionaries would be a better term).

Setting all that aside, the Fourteenth Amendment was the point of this article. I’m not saying that the right to marry shouldn’t be spread evenly (why shouldn’t everyone have the right to suffer equally–ha ha ha), but that the foundation for that should not be sought within the Fourteenth Amendment which says nothing about the federal government giving equal protections.┬áIf, on the other hand, you want to know why Extraordinary Rendition is unconstitutional, you can always find it there.


And now that you know, you can’t unknow it.

Professor H.O. Hell

One thought on “Fourteenth Amendment versus DOMA – Supreme Judicial Activism

  1. I think you should brush up on the 14th Amendment a bit. The amendment was intended to do many things, although stopping what would now call Jim Crow laws was among them. Your point about the 14th Amendment and the right to marry would seem to be negated by the wording of the amendment, which reads that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” A number of Supreme Court decisions (I think going back as far as Skinner v. Oklahoma in the 1930s) have held that the right to marry is among those privileges and immunities, and cannot be unreasonably denied. The issue of whether there is a federal right to marry has not come up largely because the federal government does not solemnize marriage but merely recognizes marriages solemnized by the states.

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