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03/28/2013

Michael Stern on Same Sex Marriage
Michael Ramsey

Michael Stern (of the Point of Order blog) has this answer to my question "Is there an originalist case for same sex marriage? "

No. Here's why. A literal interpretation of the equal protection clause might justify striking down all laws (since all laws treat some people differently than others) or no laws (since even the most discriminatory law can be applied to everyone "equally"). I would think that an originalist interpretation of the equal protection clause would have to start with the original expected application (ie, the "garden variety case" that the clause was expected to prohibit) in order to invest it with a coherent and plausible meaning.

This process might lead to the plausible conclusion that gays and lesbians are protected (as a class, not just as individuals) under some circumstances, based on an evolving understanding that they have immutable characteristics analogous to race. However, I don't see any plausible way that it could go so far as to establish a right to same-sex marriage. That’s because while the framers of the 14th amendment may not have understood the relevant facts about gays and lesbians, they certainly understood the relevant facts about marriage and they evidently did not believe that treating marriage as a classification denied equal protection to the unmarried. This means that there is something about the marriage relationship as the framers understood it that warrants different treatment and makes it not a violation of equal protection to treat married people differently than unmarried people.

Of course, it is possible that whatever is inherent in the marriage relationship to justify the differential treatment between the married and the unmarried is unrelated to the nature of the husband-wife relationship as the framers understood it (and as it had been understood throughout all of human history to that point). Possible, but not plausible. Moreover, if originalist theory is so malleable as to embrace such a conclusion, its hard to see how it is distinguished from a constitutional theory that just says judges are empowered to apply any theory of equality that they like, or that enjoys currency at that time.