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Does that mean that the fourteenth Amendment permits states to define marriage in that way?

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  • If the Supreme Court has provided a more conservative interpretation of the Privileges and Immunities Clause than envisioned by the Framers of the Fourteenth Amendment, it has provided a more liberal interpretation of the Equal Protection Clause. In 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court ruled that the doctrine of "separate but equal," in which the black and white races were segregated in public schools and other places of public accommodation, was "inherently unequal" and denied African Americans "equal protection of the laws." The ambit of the Equal Protection Clause was later enlarged by the Supreme Court beyond racial to cover an assortment of gender discrimination claims asserted by women.

    The Court made these rulings in spite of evidence that racial segregation was prevalent at the time the Fourteenth Amendment was adopted and that women were treated like second-class citizens during most of the nineteenth century. In 1868, for example, racial segregation of public schools was permitted throughout the South and in eight northern states. The gallery of the U.S. Senate was itself segregated by race during the debate of the Equal Protection Clause. During the first half of the nineteenth century, every state proscribed married women from devising a will, owning or inheriting property, entering into a contract, or exercising almost any other basic civil right afforded to women in the modern United States. Indeed, the recognized no existence for married women independent from their husbands. By marriage, the became one person in law, and that person was the husband.

  • Brentwood Academy sued the association and alleged that it had violated the Fourteenth Amendment. The association was not a part of state government, but the Supreme Court held that the state had delegated authority to regulate school athletic programs to the organization. The Court applied the general principle where there is such a "close nexus between the State and the challenged action," seemingly private behavior "may be fairly treated as that of the State itself."

    In an extremely narrow reading of the Fourteenth Amendment, the Supreme Court rejected the butchers' argument. The Court held that the Privileges and Immunities Clause protects only rights derived from U.S. citizenship, such as the right to and interstate travel and not rights derived from state law, such as the common-law rights of and property asserted by the New Orleans butchers. The Supreme Court has neither overruled its decision in the cases nor expanded its narrow interpretation of the Privileges and Immunities Clause. Most constitutional scholars have since pronounced this clause a dead letter.

  • The Fourteenth Amendment, itself, does not answer the question. When the Supreme Court first looked at the birthright clause, in the 1884 case of Elk v. Wilkins, 112 U.S. 94 (1884), it held that it did not apply to American Indians. The court’s majority held that the children of Native Americans were not “subject to the jurisdiction” of the United States, comparing them to the children born in the U.S. to foreign ambassadors.

Fourteenth Amendment - U.S. Constitution - FindLaw

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