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Virginia AG Ken Cuccinelli: Gay People Not Protected by the 14th Amendment Because its Writers Didn't Have Them in Mind

Virginia AG Ken Cuccinelli told a student at Boys State that gay men and women are not protected by the 14th Amendment because its writers would not have thought of them

Ken_cuccinelli  Think Progress reports:

In March, Virginia Attorney General Ken Cuccinelli (R) told the state’s colleges and universities to rescind policies that ban discrimination on the basis of sexual orientation, arguing that schools have no legal authority to adopt such statements. On Friday, Cuccinelli appeared at Boys State, where a high school student asked him, “How is that not a violation of the equal protection clause of the 14th Amendment?” Cuccinelli responded by suggesting that the amendment was not designed to protect gay men and women

"State universities are not free to create any specially protected classes other than those dictated by the General Assembly,” Cuccinelli said. “Your question is, why is that not a violation of the 14th Amendment’s equal protection clause. Frankly, the category of sexual orientation would never have been contemplated by the people who wrote and voted for and passed the 14th Amendment."

DailyKos diarist Barbara Morrill makes note of the very inclusive 14th amendment:

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

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  1. Cuccinelli: What part of "all" don't you understand?

    Posted by: voet | Jun 29, 2010 3:03:15 PM

  2. Someone desperately needs a big black cock up his ass, and we really need photographic evidence of him taking one---I've got the camera and the willingness to skulk around in the bushes outside of a Virginia Motel 6, do we have a volunteer to dick this douche?

    Posted by: Christopher | Jun 29, 2010 4:40:33 PM

  3. Peter, you are correct the 14th amendment is the basis for Lawrence. However it should be noted that it is the due process clause not the equal protection clause that is in play in that case. The 14th amendment is the mechanism by which we apply portions of the Bill of Rights to states (as originally written the Bill of Rights only applied to the federal government). Lawrence is decided on a fundamental rights basis and the fundamental right in question (the right of consenting adults to choose their intimate associations) is applied to the states through the due process clause.

    To be fair Cuccelli is only commenting on the equal protection clause. In equal protection jurisprudence, it is a central tenant that the amendment does not prohibit all forms of government distinction. In essence, SCOTUS has found that every law distinguishes between classes of people on some basis and prohibiting all forms of government distinction would prevent governance. However the law acknowledges certain forms of distinctions are insidious and were intended to be outlawed by the framers of the 14th amendment.

    To this end, courts apply different standards of review to each equal protection case. These standards of review are tied to the type of government distinction in question. As a default most distinctions will receive rational basis review which generally favors the government. Distinctions based on gender, religion, race and national origin are subject to various forms of heightened scrutiny which put a higher burden on the government than rational basis review.

    Cuccelli's statement in all fairness is that distinctions based on sexual orientation do not violate the equal protection clause and not that the epc does not apply to LGBT individuals. If the federal constitution is continued to be read as to apply rational basis review to distinctions based on sexual orientation this is a fair (if poorly expressed)statment of the law. While I see numerous problems with Cuccelli's statement, I think the central problem is that there is a bit of disconnection going on between the level of understanding of constitutional law a lawyer possesses and that of the general public.

    Posted by: boywonder3919 | Jun 29, 2010 5:53:52 PM

  4. @ Boywonder, Robin, if I may: Excellent analysis and explanation, however Cuccelli's focus on this issue is really just selective, malicious pandering. I am sure that there are many University procedures and policies that are inconsistent with the law as interpreted by Cucelli, however he's letting those slide in favor of this hurtful shit. To portray him as an objective legal analyst just telling us what the law is is naive or disingenous (No offense intended).

    Here in California I know that some counties have been slow in "updating" the statements on non discrimination that they include/require in their contracts with vendors. Many still do not contain any reference to "sexual orientation" although the category was added in I think 1990 or 20 years ago.

    More and more our politics have degenerated to the level of Fox "news", and that's a pity, especially coming from an attorney general. Is he planning to run for governor?

    Posted by: Fahd | Jun 29, 2010 8:20:36 PM

  5. A minor correction:

    It was Justice Kennedy who wrote the majority opinion in Lawrence v. Texas. As the senior justice in the majority (since Chief Justice Rehnquist was in the minority) Justice Stevens assigned the task of writing the majority opinion to Kennedy.

    Posted by: RedCedar | Jun 29, 2010 9:04:06 PM

  6. I have no doubt that attorney general has plans for higher office.

    Posted by: RedCedar | Jun 29, 2010 9:10:08 PM

  7. @ Fahd, I didn't mean to imply that his answer derives from objective legal analysis, and I don't think I said that. Rather, I think it's important to bust this guy for some of the very reasons you cited. When we write him off as an idiot we do a disservice to idiots everywhere. The AG isn't acting out of an inability to understand the harm he is causing, but rather he's a smart man who knows how to use the law to enact his own agenda.

    Additionally, I think it's important for us to understand the hurdles we face as we fight for equality. While principle may be on our side, the law generally isn't. Part of this may be my burn out on LGBT news and blog coverage of the Prop 8 trial, but it seems to me the community, like most americans, is generally misinformed about U.S. constitutional law. If we want to win the argument in both the courthouse and the public square, we have to know the intellectual battleground we're entering. When we can't call out people like the AG for the real bullshit of their position, it makes us look unreasonable. I can just imagine Bill O'Reilly hitting on this story, pulling out some of the comments made in this thread and then having a good laugh as he got a neo-con lawyer to explain exactly why Cuccinelli is constitutionally correct.

    Posted by: boywonder3919 | Jun 30, 2010 1:02:54 AM

  8. @Boywonder: Okay, but we should all realize that we, including he, do not know whether or not he is constitutionally correct until the Supreme Court rules on the matter, which they may do on the pending Prop 8. case.

    Until then, this is pretty much about him fishing for Palin voters.

    Also, even if we are silent, Bill O'Reilly will never be on our side. When I was a kid people wore T-shirts that said silence=death.

    Posted by: Fahd | Jun 30, 2010 4:52:37 AM

  9. Okay, I just remmebered about the President right before the Civil War, James Buchanan, and that destroy's Cuccinelli's notion that the category of sexual orientation would not have been contemplated.
    James Buchanan, President between 1857-1861 (all the framers of the 14th Amendment lived through then), was the ONLY US President never married and remained a bachelor. He lived 15 years prior to his Presidency with Alabama Senator William Rufus King. In Buchanan's letters, he spoke of "the affection of a special friendship" and of his "communion" with his housemate. Their relationship was talked about constantly by politicians not just in DC, but all over the country. Andrew Jackson refered to King as "Miss Nancy" and "Aunt Fancy", while the governor of Tennessee spoke of the two as "Buchanan and his wife".

    The notion that homosexuality was completely unknown and "uncontemplated" during the authoring of the 14th Amendment is historically inaccurate. This is just an excuse for Cuccinelli to assert his UN-American prejudice to codify discrimination against the last group of people he thinks he can legitimately categorize as sub-human. The man needs to be impeached.

    Posted by: Rudy | Jul 1, 2010 12:32:29 PM

  10. Oh, great. Now we're back to the gay people are not 'persons' at all argument. And black people are apes, and women are objects, and children are to be seen and not heard, and and and.... Clearly, we have to step up our game.

    Posted by: thom | Jul 1, 2010 1:29:52 PM

  11. I've been doing some more research and these are the prevailing opinions written by Supreme Court Justice Kennedy in Lawrence v. Texas and Romer v. Evans regarding homosexuals and the 14th Amendment:

    Lawrence v. Texas: "Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

    So it really DOESN'T MATTER if the category of sexual orientation was contemplated by the framers of the 14th Amendemnt, according to current Supreme Court rulings.

    Romer vs Evans: "We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, and the judgment of the Supreme Court of Colorado is affirmed.

    Posted by: Frank | Jul 1, 2010 1:54:00 PM

  12. I'm sure the framers of the 2nd Amendment didn't contemplate that the average American could obtain automatic assault firearms that can take out an entire busload of school children but he and other fanatic Republicans don't have a problem with that.

    Posted by: Dean | Jul 2, 2010 6:00:32 PM

  13. OK. If the Founding Fathers did not know about Gay people when they wrote the Constitution, neither did they know that arms manufacturers would come up with repeating pistols and rifuls (sp?), nor machine guns or other "Modern Guns" when they said that we had the individual right to "Bear Arms".

    Posted by: Jerry6 | Jul 4, 2010 9:41:54 PM

  14. I think it would not have occurred to lawmakers and other officials to deny gay people their legal rights simply because they were gay. I think it took a certain type of stridency from the so-called "Christians" to make that happen. Before the influence of that type of religious perspective (fundamentalism was unknown in before the end of the 19th Century, having risen in response to the work of Charles Darwin) people would have teased and so on, but no one would seriously have tried to deny their rights. Cuccinelli is right about that--it would not have been on their radar. They simply weren't mean in the way today's republicans are--toward gays I mean.

    Posted by: Danny | Feb 17, 2011 10:05:28 PM

  15. The constitution says what the Justices say it says. If we can reelect Obama and get a few more liberals on the court, the Virginia AG will see that the 14th amendment does indeed protect gay people.

    Posted by: john leddy | Sep 14, 2011 8:42:07 PM

  16. From: The Declaration of Independence

    We hold these truths to be self-evident,
    that all men are created equal, that they are
    endowed by their Creator with certain
    unalienable Rights, that among these are Life,
    Liberty and the pursuit of Happiness.

    Posted by: J | Mar 22, 2012 9:12:31 PM

  17. So much noise for the 2% of gays in America. Oh wait, they are the most vocal group out there pushing down everyones throat their filthy lifestyle. And now redefining and changing everything to cater to the 2%!! Ridiculous.

    Posted by: Emma | Feb 21, 2013 2:32:55 PM

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