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01/19/2015

William Eskridge on Originalism and Same-Sex Marriage
Michael Ramsey

SCOTUSblog is hosting a symposium on the same-sex marriage cases, including this post from William Eskridge (Yale): Original meaning, public deliberation, and marriage equality.  Excerpts:

Upon reflection, I believe that Justice Kennedy’s opinion in Romer provides the constitutional starting point, one grounded in the text and original meaning of the Equal Protection Clause.  Romer opened with a reminder that the Fourteenth Amendment’s original meaning was to bar class or caste legislation, including laws that discriminate against minorities, “not to further a proper legislative end but to make them unequal to everyone else.”  Judge Jeffrey Sutton’s thoughtful majority opinion in DeBoer invoked the original meaning of the Fourteenth Amendment but declined to engage with (or even acknowledge) Romer’s articulation of that original meaning.   In the marriage cases to be heard this Term, the Cato Institute (and other amici) will argue that original meaning strongly supports the equal protection challenges in these cases, a line of argument I wholeheartedly support.

...

To be sure, the original meaning of equal protection does not prevent the state from making neutral distinctions that advance the public interest, and traditionally judges have given the state wide leeway to make policy judgments.  So the central question in these appeals will be this:  What public interest justifies the exclusion of this minority group from a central state institution like civil marriage? 

Three quick thoughts:

(1)  It says something about originalism's new place that the most prominent academic defender of same sex marriage makes the text's original meaning the centerpiece of his argument.  

(2) Whatever one thinks of the merits, it would be better from a rule-of-law perspective for the Court to adopt this approach -- which as Professor Eskridge says, surely has at least a plausible root in original meaning (see also my thoughts here) -- than to persist with whatever it has been doing in this area.  A win for same sex marriage on these terms would be a win for originalism, even if one is not persuaded.

(3) The example of same sex marriage helps illustrate a point I suggested last week -- that originalism/nonoriginalism and activism/restraint are distinct dimensions of judicial decisionmaking.  Even if Professor Eskridge has the best argument for original meaning, it is a closely constested one.  So an activist originalist might well embrace it, but a restrained originalist likely would not.  (This isn't meant as a prescription either way, just as a description).