Fourteenth Amendment Applies to Race, Not Gender

In his letter of Sept. 6, 2002, Timothy C. Scannel wonders how, under the equal protection clause of Section 1 of the Fourteenth Amendment to the Federal Constitution, it can be wrong to restrict marriage based on race, but "okay" to restrict it based on gender.

The simple answer to his question, and the one that should prevail without the need to search for any other, is that the Fourteenth Amendment was addressed to race and not gender. Each of the Civil War Amendments was directed towards settling the status of the newly emancipated black slaves, the Thirteenth and Fifteenth expressly so, and the Fourteenth by inescapable implication based on its historical setting, the record of the debates upon it in the 39th Congress, and the specific limitation of the scope of its second section to males. Thus, in the case of Bradwell v. Illinois, 16 Wall 130 (1873), the Supreme Court upheld the refusal of the courts of that state to license a woman to practice law. Also, in the case of Minor v. Happersett, 21 Wall 162 (1875), it ruled that the Fourteenth Amendment did not confer upon women the right to vote.

Moreover, in the years immediately following the amendment's ratification, the Supreme Court ruled that the Fourteenth Amendment:

• was not intended to interfere with the power of each state to prescribe regulations to promote the "health, peace, morals, education and good order" of the people. Barbier v. Connolly, 113 U.S. 27 (1885);
• did not limit and was not designed to limit the subjects upon which the police power of the state may be exerted. Minneapolis and St. Louis Railroad Company v. Beckwith, 129 U.S. 26 (1889);
• did not deprive a state of the right to adopt any classification in the exercise of its police powers that had a reasonable basis on any state of facts that could reasonably be conceived of as having existed when the law was enacted, Crescent Cotton Oil Company v. Mississippi, 257 U.S. 129 (1921), and was not clearly, actually and palpably unreasonable and arbitrary, Bachtel v. Wilson, 204 U.S. 36 (1907);
• and did not take from the state legislature either the right continually to adjust its legislation according to perceived existing exigencies or its freedom to estimate the degree of evils it perceives and confine the resulting legislation to those classes of cases where the need is deemed to be clearest, the legislature not being bound to extend its regulation to all cases it might possibly reach. Price v. Illinois, 238 U.S. 446 (1915).

It should go without saying - but nothing can go without saying given the present state of affairs in which courts are not above falsifying history in order to clothe their intrusions into policy-making under the guise of constitutional legitimacy - that no member of the 39th Congress who voted to propose the Fourteenth Amendment, and no member of the state legislatures who voted to ratify it, expressed the slightest intention of making a federally protected class out of homosexuals. The extent, if any, to which the laws of the state of New Hampshire should change in that regard, therefore, are matters for decision by the elected representatives of the people through legislation, not by the judiciary through fiat.

Very truly yours,
Gregory M. Sorg
Franconia, NH

'Extreme Patience' With Pro Se Litigants?

Your article on pro se statistics (Sept. 6 issue of Bar News) was very interesting. The fact that nearly half of the Supreme Court cases and over 90 percent of the district court cases involve pro se litigants is astounding.

I'm not that old, but I yearn for the good old days when the first thing that the judge would do when confronted with a fool who represented himself would be to politely ask him to leave the courtroom and go hire a lawyer. In those days, the judiciary was not so concerned with the feelings of the public. They wanted every litigant to hire a lawyer because surely being represented by counsel is the best way to achieve justice in our society. Lawyers are trained to separate the wheat from the chaff. They know how to counsel, console, mediate and settle. The biggest waste of judicial resources in our state is the never-ending amount of time that trial justices must waste on helping pro se litigants understand the system and explaining their rights to them.

The whole thing behind the task force is that every individual should feel that he or she has gotten a fair shake when he or she seeks the involvement of our judicial system. This is a worthwhile goal. I am of the opinion that the same goal should be pursued on behalf of attorneys involved in the process and I speak particularly of a recent district court experience. Due to my absentmindedness, I had the misfortune to sit through a few hours of pro se trials. The judge showed extreme patience. Each defendant wanted to give an argument during cross-examination. The questions were extremely repetitive. It seemed as if the defendants were almost afraid to stop talking. In one case, the judge during the course of the trial seized upon the defendant's claim that the complaint was not drafted properly and dismissed the case sua sponte.

Obviously, this is a very tiring process for the court because by the time that the judge got to my case, I got the distinct impression that he did not seriously consider my arguments.

My suggestions to improve the administration of justice are as follows:

1. Allow lawyers to be heard within a reasonable time of their arrival in the courtroom, if for nothing more than to tell them they have to wait.
2. Tell the pro se litigant that justice is an important and serious concept. Either hire a lawyer or stop wasting our time.

Robert E. Fisher
Dover

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