What Mike Huckabee doesn't get about same-sex marriage and the Constitution

Republican presidential candidate Mike Huckabee on Sunday sat down with ABC News's George Stephanopoulos for a tense exchange over Kim Davis.

Huckabee defended Davis, arguing that the Kentucky clerk should not be in jail after she stopped her office from issuing marriage licenses, as required by state law, due to her religious opposition to same-sex marriages. Huckabee made a lot of vivid comparisons throughout the discussion, invoking slavery, the Founding Fathers, Abraham Lincoln, and "judicial tyranny."

But then Huckabee made a more basic mistake, misunderstanding the legal rationale for one of the biggest Supreme Court decisions of the past few years. He asked, "When you say the federal government recognizes [same-sex marriage], what statute under which do they recognize it?"

There's a lot of philosophical debate about marriage equality and Davis. But at least to Huckabee's question, there's a very easy answer: the 14th Amendment.

The 14th Amendment prohibits discrimination

The 14th Amendment established that no group should be denied equal rights or protection under the law. So when it comes to marriage, same-sex couples can't be denied the same protections and rights guaranteed under federal and state marriage laws to other groups. This is the very foundation for the Supreme Court rulings that deemed federal and state bans on same-sex marriages to be unconstitutional. It is the statute that legalized same-sex marriages across the country.

Although the 147-year-old 14th Amendment was written at a time when the fight over same-sex marriage rights was far from the mainstream, legal scholars agree that it was purposely written in a broad manner to ensure that all groups — even those that the authors of the 14th Amendment couldn't envision — would be shielded from discrimination. So it's actually no accident that it's the basis today to protect same-sex couples from discrimination.

"The authors of the 14th Amendment rejected drafts and proposals that would have limited the 14th Amendment just to racial discrimination," Judith Schaeffer, vice president of the Constitutional Accountability Center, said in June. "Instead, they put in language that protects any person — not just on the basis of race, but any person."

The 14th Amendment has been used in marriage cases before: In Loving v. Virginia in 1967, the Supreme Court concluded that states' bans on interracial marriages discriminated against interracial couples and were therefore unconstitutional. Although Huckabee told Stephanopoulos that Loving v. Virginia was totally different, the legal rationale for it was the same as the decisions in the same-sex marriage cases: Just as interracial marriage bans violated interracial couples' rights under the 14th Amendment, so too did same-sex marriage bans violate same-sex couples' rights under the 14th Amendment.

The 14th Amendment is key in Kim Davis's case

The answer to Huckabee's question is important not just to sate the presidential candidate's curiosity but to the case of Davis in Kentucky as well.

When Davis decided earlier this year that she would stop her entire office (not just herself) from issuing marriage licenses to same-sex couples, she did it in a way that actually acknowledged the 14th Amendment's importance to marriage equality: She prevented her office from issuing marriage licenses to anyone — both opposite-sex and same-sex couples. That way, she reasoned, she couldn't be accused of trying to discriminate — she wasn't just denying same-sex couples a right, but other couples, too.

But this placed Davis in conflict with Kentucky law, which requires that clerks issue marriage licenses. So when Davis forbade her office from issuing marriage licenses, ignored federal court orders that she issue marriage licenses, and said she would stop her deputy clerks from issuing marriage licenses if she was released from jail, she effectively forced US District Judge David Bunning to keep her in jail so the Rowan County clerk's office could conduct its legal duties without Davis's interference. That cascade of effects, originating from her attempts to bypass the 14th Amendment, is why she's in jail today.