When asked for evidence that the framers did not intend for the 14th to be applied to same-sex marriage, you implied that their failure, inability at that time even, to contemplate same-sex marriage is evidence they did not intend to apply the 14th to it. This is a non sequitur. The failure to foresee a specific circumstance when enacting a rule does not mean the rule was not intended be applied when the unforeseen circumstance arises.

If the framers had intended to limit the 14th’s application only to those circumstances they contemplated at the time, they more likely would have used more specific language to identify and address those specific circumstances. The framers did not, however, intend for the 14th to be applied only to those circumstances they contemplated and there is no evidence they intended such. If contemplation by the framers/Congress/States of all the ways in which the 14th could be applied was a prerequisite before applying it, then there would be very, very few circumstances today in which the 14th could be applied.

Moreover, their intent is relevant only when their words are ambiguous. The words of the 14th are not ambiguous.

Lastly, you did not explain why a favorable ruling for Boies/Olsen would constitute judicial activism, and I’m still unclear on why you think the court would have no authority to rule that way. Courts routinely overturn laws that treat similarly situated people differently. There is no more of a basis for believing same-sex couples should be given less protection under the 14th than those who sought to marry outside their race.

As for evidence, in the first place, since it is Boies and Olsen making the claim that the Constitution does so require, and to force such a sweeping and radical change, the onus is on them to prove it. The burden of proof is on those who seek change or make startlingly novel claims.

However to take your bait, anyone with an inkling of historical knowledge about culture, language, and the law at the time of ratification of the original Constitution or any of the supposedly relevant amendments would honestly have to concede that the very idea of “gay marriage” would have been not only an unthinkably repulsive notion on a policy basis at the time, but as far as it is possible to imagine for an intended and agreed-upon meaning of any ratified text. Claiming that anything else is the case is prima facie evidence of gross ignorance or mendacity.

Again, all this is separate from the merits or lack thereof of gay marriage as a lifestyle or a public policy. One can be an honest social / cultural liberal who practices or strongly believes in equal legal recognition of “gay marriage”, while still recognizing that nothing in the Constitution mandates one’s personal public policy preference on this issue to be enacted.

The framers’ unstated intent is relevant only if their written words are ambiguous. The words of the 14th amendment are not, however, ambiguous.

And just out of curiosity, what is the evidence that the framers did not intend for gays to have equal marriage rights?

The implication of some of your earlier posts was that a ruling in favor of Boies/Olsen would be an act of judicial activism. If that is not your view, then I apologize for misstating your posts. However, if that is your view, could you please elaborate on why this would be a case of judicial activism?

Judicial review–that the Supreme Court could strike down a law as “unconstitutional”–was established in an early landmark SC case, Marbury vs. Madison (1803).

But they should not make the obviously untrue and patently dishonest claim that any portion of the constitution, as WRITTEN, already includes such a requirement. None of the men who wrote and ratified the equal protection clause of the 14th amendment meant that by it, and their opinion is the ONLY one that matters. Similarly, a new amendment that is known to be intended to mandate “marriage equality” will not be able, once ratified, to be “re-interpreted” away by conservatives.-

Original intent really protects everyone, and the integrity of the law, language, history, and logic.

Judicial activism is NOT a court striking down a statute or making an unpopular ruling.

Rather, it is a court acting outside the boundaries of its properly limited and defined powers, usually in order to mandate or ban a particular policy without such a policy actually having been mandated or banned in the TEXT of the Constitution or its amendments, as such text is known to have been understood in the context of the time of ratification.

Although in theory, judicial activism could be used to implement a popular policy, as a practical matter, it is instead typically employed to set in place unpopular policies that would never have survived a popular vote or a vote by an elected legislature, and is known by all parties involved as the only way such a policy could ever be enacted with the short to mid-term, or at least by far the easiest way.

Such judicial activism is particularly obnoxious, pernicious, and morally illegitimate, although it is no more legally illegitimate than a theoretical act of judicial activism that is broadly cheered by the public at large.

Really? Afghanistan is “arbitrary?” We just up and decided, totally arbitrarily, to go to war in Afghanistan?

You discredit yourself utterly.

You’ve argued that a win by Boies/Olsen would be judicial activism because it would result in a decision that goes against the will of the people. This proves the uselessness of the term “judicial activism” and it is sheer lunacy to suggest that the court has no right to side with Boies/Olsen.

The court’s role in this context is to determine whether or not the laws passed by CA prohibiting same-sex marriage violate the U.S. Constitution. If every court ruling that overturns a legislative act constitutes “judicial activism” and, therefore, should not occur, then the court is unnecessary, which obviously was not the view of the drafters of the Constitution.

This, I think, is why survivalist fiction is popular among a certain type of group on the far right. It would take that kind of nationwide desperation to return to the kind of country in which their instincts would prosper.