Box Turtle Bulletin

Libertarians on Equal Protections

The Cato Institute, a libertarian think-tank, has filed its brief before the Supreme Court in support of marriage equality. In it, Cato seeks to show a distinction between original meaning and original understanding.

Some opponents of equality have taken an ‘original intent’ position and argued that the framers of the Fourteenth Amendment did not intend to include gay people in their promise of equality under the law.

Cato argues that the meaning of equality is the same and that their intent was, indeed, equality. They merely didn’t understand their meaning to include gay people at that time.

This is interesting in that they don’t throw ‘original intent’ out the window, but rather sees intent in terms of principle and objective rather than in terms of some list of people that the framers may have or may not have had in mind.

The lower court erred by focusing on a certain kind of original understanding (the immediate effect supporters “understood” the Fourteenth Amendment to have). This Court has rejected that approach to constitutional interpretation, focusing instead, on original meaning. … In the Fourteenth Amendment context, this Court has asked how the well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups.
…
Laws can and must have consequences beyond those understood or anticipated by the generation of their promulgation. … As one prominent originalist scholar recently put it, original-meaning originalism “is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision.”

And rather than rely on speculation about intent as imagined by pundits or certain Supreme Court justices, they turn to the language of the framers:

Contemporaries explained the meaning of the Equal Protection Clause in precisely this way. Introducing the Fourteenth Amendment, Senator Jacob Howard said that the Equal Protection Clause “establishes equality before the law, and . . . gives to the humblest, the poorest, and most despised . . . the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty.” The clause plainly “abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another.” Cong. Globe, 39th Cong.,1st Sess. 2766 (1866) (Sen. Howard); see id. at 2961 (Sen. Poland) (similar). House Speaker Thaddeus Stevens explained that the public meaning of the clause was that “the law which operates upon one man shall operate equally upon all.” Id. at 2459 (emphasis in the original).

The Fourteenth Amendment was not an amendment to give rights to black people, but rather an amendment to prohibit legislatures from establishing castes of people with varying laws and benefits by class. Irrespective of how well that worked, that was its original intent.

Their blog commentary may put it in more approachable terms

Essentially, the Equal Protection Clause means, in 1868 as in 2015, exactly what it says: states cannot have one set of laws for the rich and another for the poor, separate schools for white and black students, or marriage licenses only for opposite-sex couples.

Arizona group to put marriage back on ballot

Should the Supreme Court of the United States fail to make a broad ruling on marriage equality (and few think they will) a group in Arizona is getting ready to put the issue back on the 2014 ballot. (AZ Central)

If that happens, a new political group, Equal Marriage Arizona, will jump into action.

The group filed paperwork Monday with the Arizona Secretary of State’s Office to begin gathering signatures for a ballot initiative to redefine marriage as “a union of two persons.” The initiative also includes a clause stating that religious organizations or individuals cannot be required to officiate a marriage if they have religious objections.

The group’s co-chairs, Phoenix Libertarian businessman Warren Meyer and retired Tucson attorney Erin Ogletree Simpson, chairwoman of the Log Cabin Republicans of Arizona, said they will begin collecting the required 259,213 signatures as soon as the Supreme Court rules. They have until July 3, 2014.

The initiative has the support of former New Mexico Governor Gary Johnson, the Libertarian Party’s nominee in 2012 and the leaders claim that they have commitments for funding. They are currently looking for a Democratic co-chair.

Johnson runs as Libertarian

Evolved already.

As anticipated, Republican former governor of New Mexico Gary Johnson has reregistered as a Libertarian in order to seek that party’s nomination for president. (Foxipoo)

Gary Johnson has made it official. The Republican presidential candidate who got no respect has announced he will now seek the nomination of the Libertarian Party.

Johnson made the announcement Wednesday morning in Santa Fe, New Mexico where he served as the state’s Republican governor from 1995 to 2003.

“This was both a difficult decision – and an easy one,” Johnson said. “I have a lot of Republican history, and a lot of Republican supporters. But in the final analysis…I am a Libertarian – that is someone who is fiscally very conservative but holds freedom-based positions on the issues that govern our personal behavior.”

This is a very peculiar election season. A Libertarian candidate without an association with racism or state directors who are board members of a hate-group or touted support from dominionist extremists may find higher than expected support.