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01/29/2015

Orin Kerr and Larry Solum on Originalism and Same-Sex Marriage (UPDATE: And Lots More from Ilya Somin)
Michael Ramsey

At Volokh Conspiracy, Orin Kerr asks: Is there an originalist case for a right to same-sex marriage?  His post reviews arguments by Steven Calabresi, Ilya Somin, William Eskridge and me, and continues: 

These are important arguments, but here’s where I am stuck: I don’t yet see how these are distinctly originalist arguments. My primary problem is at ... the articulation of the broad principle. I am not an originalist theoretician, so maybe I am missing something. But I would think that for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment. From what I can tell, the originalist arguments made so far haven’t really done that. As a result, I’m not sure there is anything distinctly originalist about these claims.

Larry Solum responds at Legal Theory Blog:  What Should Count as an Originalist Case for a Right to Same Sex Marriage (a long and insightful post that defies any easy summary).

My brief response to Professor Kerr's challenge is this: I agree with his standard, that "for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment."  I think my (tentative) argument meets that standard.

For me, the specific constitutional text is the equal protection clause, which (I assume) has an original meaning that imposes some sort of equal treatment requirement.  (This is controversial among originalists and I'm not trying to defend it here; I am only assuming it to get to the hard part).  But, still agreeing with Professor Kerr, an originalist needs to show, not just that some idea of equal treatment establishes a right to same-sex marriage, but that the public meaning of equal treatment at the time establishes a right to same-sex marriage.  

In the next step I would ask what principle did the public meaning at the time establish.  I say that it is something like an anti-caste provision.  The paradigm case of equal treatment was for Blacks to be treated equally with Whites.  But the clause does not say just that, so it should be read to mean that sort of discrimination or anything like it (else they would have used specific rather than general language).  So, for example, discrimination against Chinese laundries is also covered, as in Yick Wo v. Hopkins, even if no one at the time of enactment was thinking about Chinese laundries.

So far, I think the argument is comfortably originalist, and I doubt Professor Kerr would disagree. The trick is in the next step.  It's clear that at the time no one would have thought the rule established by the equal protection clause meant there was a right to same-sex marriage, had they considered it.  Is is possible they were mistaken?

My argument is that they might have been.  Unlike some originalists, I think it is very hard to make an argument for applying a rule in a way that is expressly contrary to the common expectation of how it would be applied at the time of enactment.  But hard is not impossible.  In this case, it's possible to say that we now understand discrimination on the basis of sexual orientation in a different way than they did, and, in particular, we understand it in a way that might make it resemble discrimination on the basis of race. And if  that's the case, then I think we can say that the discrimination is unconstitutional under the same originalist rule that makes race discrimination unconstitutional.  It is (as Ilya Somin says) just a case of applying the old rule to a new circumstance, except that the circumstance is "new" not because of a change in technology but because of a change in the way we understand the relevant facts.

To be clear, there are a number of highly contestable steps in the argument, but my view is that if you accept the steps you have made an originalist argument.

UPDATE:  Ilya Somin has extensive further comments (which I read after writing the above): Originalism is broad enough to include arguments for a constitutional right to same-sex marriage.  I think we are in broad agreement.

FURTHER UPDATE:  Orin Kerr and Ilya Somin continue the conversation: More on originalism and same-sex marriage (Kerr) and Originalism and same-sex marriage revisited – a further rejoinder to Orin Kerr (Somin).