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11/18/2014

Dale Carpenter on Originalism and Same-Sex Marriage
Michael Ramsey

At Volokh Conspiracy, Dale Carpenter: Inverted equal protection: same-sex marriage at the Sixth Circuit (Part I, originalism).  It's a long, thoughtful discussion of originalism and same-sex marriage, critiquing Judge Sutton's approach in the Sixth Circuit opinion.  From the core of the argument:

Principles-based originalism has been used in equal-protection doctrine to enforce the larger principles embodied in the text–like abolishing caste-creating laws and prohibiting discrimination against a group for invidious reasons unrelated to their own merits, that is, failing to treat them like “any person” who possesses equal worth and dignity. The Equal Protection Clause is a self-conscious repudiation of exclusion and hierarchy supported by nothing more than ancient practice. It demands reasons. And what counts as legitimate and sufficiently rational reasons evolves over time, as it has in every area of equal protection. How to reconcile the need to resist “anything goes” in equal-protection cases with the doctrine’s undoubted reliance on a broader principles-based originalism is a genuine problem. But DeBoer does not even acknowledge, much less grapple with it.

In fact, there are originalist-oriented arguments in favor of a constitutional right to same-sex marriage, as Ilya notes, including a recent article by Federalist Society co-founder Steve Calabresi. I don’t evaluate those arguments here, although suffice it to say that originalist arguments can be used plausibly and have been used in fact to reach results that would never have been anticipated by the authors of the amendment. Judge Sutton’s opinion simply does not engage the issue at the level of originalist principle. His originalist analysis is incomplete and selective.