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Bar News - December 13, 2002 Morning Mail More Bar Members in the Military I read with interest your article on Bar members on active duty in the military; however, there are two omissions that I wish to bring to your attention. Major David Young is on active duty with the United States Army Special Forces and I have been a member of the New Hampshire Army National Guard, currently serving in Concord, since 1985. Thank you for your attention to this matter. William A. Whitten Disagrees with Interpretation of Fourteenth Amendment I am appalled that NH Bar News printed, without comment, the letter from attorney Gregory M. Sorg (Oct. 18, 2002) with the headline "Fourteenth Amendment Applies to Race, Not Gender." I do not know if the headline was written by attorney Sorg or by a staff member. Regardless, it is completely inaccurate. Attorney Sorg may be correct that when the Fourteenth Amendment was first passed, and for some years thereafter, most people considered its subject matter limited to race. (Not all did, however, as the vigorous campaigning of Susan B. Anthony, Lucy Stone and others demonstrates.) The cases he cites, the latest of which is dated 1921, may well reflect that view. It is likely, as he says, that in the 1860s, no member of Congress thought that the Amendment would legitimize marriages between two men or two women. But Constitutional jurisprudence is not static. Even in racial matters, in 1921, Plessy v. Ferguson and "separate but equal" were still considered good law. They are no longer. From at least 1971, the United States Supreme Court has held that both the Fourteenth Amendment and its sister, the Fifth Amendment, prohibit discrimination on the basis of gender, e.g., Reed v. Reed, 404 U.S. 71 (1971); Frontiero v. Richardson, 411 U.S. 677 (1973). In the latter case, the Court concluded "that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny." Attorney Sorg may disagree with those rulings, and he is entitled to his opinion. He is even entitled to his opinion that any rulings that he disagrees with are nothing more than "falsifying history in order to clothe their intrusions into policy-making under the guise of constitutional legitimacy." But it is misleading and confusing to insist that in 2002, the Fourteenth Amendment has nothing to say about discrimination based on gender. The legal, moral, religious and societal questions surrounding same-gender marriage and family relationships are complex. It does not help the Bar or the public to have inaccurate or woefully incomplete legal opinions published, without comment or qualification, in a newspaper by and for lawyers. Elizabeth Cazden
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