Monte Neil Stewart is the lead attorney defending Nevada’s practice of anti-gay marriage discrimination and he’s a member of the legal team defending similar discrimination in Utah. He also just told a federal appeals court that Brown v. Board of Education was wrongly decided and we should return to the days when public school discrimination was allowed.
Stewart didn’t say so in explicit terms, but that’s the clear consequence of an argument he just presented to the United States Court of Appeals for the Ninth Circuit, as part of his effort to defeat marriage equality in that state. Although both Nevada’s Democratic Attorney General Catherine Cortez Masto and its Republican Governor Brian Sandoval agree that their state’s marriage discrimination law cannot “withstand legal scrutiny,” Stewart continues to defend unequal treatment for same-sex couples as the attorney for the Coalition for the Protection of Marriage.
In that role, Stewart submitted a letter to the Ninth Circuit on Tuesday arguing that the Supreme Court’s recent decision authorizing a New York state town to open its legislative sessions with a prayer also supports the conclusion that marriage discrimination is constitutional. According to Stewart, “[i]n upholding the town’s practice of beginning town council meetings with prayer, the Court made several statements indicating that the First Amendment’s Establishment Clause, made applicable to the States through the Fourteenth Amendment, should not be interpreted in a way that renders invalid a practice—like prayer in public meetings—that was well established at the time the First and Fourteenth Amendments were adopted.”
It is true that the Supreme Court did say in its Town of Greece v. Galloway decision on Monday that legislative prayer is acceptable “because history supported the conclusion that legislative invocations are compatible” with the Constitution, but that holding was limited to the context of the separation of church and state. Stewart, however, thinks this holding should be applied very broadly. In his words, “[a]ny ‘test the Court adopts’ for determining Fourteenth Amendment limitations on a State’s authority to define marriage ought likewise respect ‘a practice’—namely, the man-woman definition of marriage—that was universally ‘accepted by the Framers’ of the Fourteenth Amendment.”
Marriage discrimination was, indeed, an accepted practice in 1868, when the Fourteenth Amendment was ratified. So was public school segregation. Indeed, as Erwin Chemerinsky explains, “[t]he same Congress that ratified the Fourteenth Amendment also voted to segregate the District of Columbia public schools.” The separate but equal doctrine, which formed much of the legal basis for public school segregation, was upheld by the Supreme Court in 1896. It wasn’t until 1954 — 86 years after the Fourteenth Amendment was ratified — that public school segregation was struck down by the Supreme Court.
So, if Stewart is correct that a practice becomes constitutional so long as it was accepted at the time that the Fourteenth Amendment was ratified, Brown was wrongly decided. Some other examples of practices that were accepted in 1868 are government discrimination against women — a practice that wasn’t blocked by the Supreme Court until the 1970s — and bans on interracial marriage. Both of these practices would also be permitted under Stewart’s reading of the Constitution.