Originalism and Same-Sex Marriage: A Response to Mike Rappaport (and Jack Balkin)
An objection to this analysis is that it fails to acknowledge that sexual orientation is very similar to race. ... But an interpreter might resist this conclusion by denying that sexual orientation is sufficiently similar to race. While modern understandings hold that sexual orientation is not a matter of choice (like race), sexual orientation involves a host of differences in behavior that race does not. Thus, one might conclude that race and sexual orientation are not sufficiently similar.
Perhaps. But many laws that discrimininated on the basis of race involved behavior that people at the time thought was immoral. For example, consider the various rules that prevented blacks and whites from associating in public. These rules addressed supposedly immoral behavior, as modern rules against same-sex conduct address supposedly immoral behavior. But they depend upon an underlying view of people of a different race (or a different sexual orientation) being different in a morally relevant sense. With respect to race, I think there is a strong originalist argument that the Fourteenth Amendment rejects that sort of moral judgment and prohibits laws governing behavior that are based on it. If sexual orientation is (under modern understandings) akin to race, the Fourteenth Amendment should similarly prohibit laws governing same-sex behavior if the laws are premised on a similar constitutionally impermissible moral judgment.
I do not think, though, that my argument more broadly implies the indeterminacy or evolutionary nature of originalism. Jack Balkin seems to say here that the same-sex marriage issue shows how orignialism is not "significantly more constraining than other forms of constitutional argument." But the sexual orientation issue is unusual in that our understanding of key facts has changed in a way that affects the application of the text. (For a more extended discussion, see here). In many cases that won't be true. So, while I would not say that originalism always generates clear answers, I think the same-sex marriage issue is not representative of originalism in the ordinary course -- it presents a distinctly difficult issue.
Mike Rappaport adds: I shall respond to Mike's argument next week. For now, I just want to make clear that my position is that there are reasonable textual arguments on both sides of the same sex marriage issue. I don't have a firm position on which is stronger. Mike here is responding to the argument that I made against requiring same sex marriage.