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01/27/2015

Ilya Somin on William Eskridge on Originalism and Same-Sex Marriage
Michael Ramsey

At Volokh Conspiracy, Ilya Somin: William Eskridge on originalism and same-sex marriage (discussing the post noted here). Professor Somin offers this alternative originalist approach:

Overall, I continue to believe that the better originalist argument for striking down laws forbidding same-sex marriage is that such laws amount to unconstituitonal sex discrimination. Unlike in the case of gays and lesbians, most informed observers in the 19th century clearly recognized that women are a distinct class, and that laws discriminating against could be challenged under Fourteenth Amendment. Most of them nonetheless believed that all or nearly all sex-discriminatory laws of that era were constitutional. But that conclusion was premised on factual understandings about women’s capabilities that have been superseded by later evidence. Similarly, nineteenth century (and later) support for laws restricting marriage on the basis of gender were also premised on factual assumptions that later evidence proves largely false. As nearly all originalists recognize, that methodology is entirely consistent with updating the application of its fixed principles in light of new factual information. Indeed, such updating is often not only permitted, but actually required by the theory. Otherwise, it will often be impossible to enforce the original meaning under conditions different from those envisioned by the generation that framed and ratified the relevant provision of the Constitution.