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Originalism and Same-Sex Marriage Revisited
Michael Ramsey

With arguments today on the same-sex marriage cases, here are a few more thoughts from an originalist perspective.

I was interested to read the outstanding amicus brief by originalist scholars (including three of my colleagues) on behalf of the states (discussed here and here).  Despite my role of trying to develop an originalist argument for constitutional protection of same-sex marriage, I was surprised to see how much of the brief I agreed with.  As I read it, the brief accepts (a) that the original meaning of the equal protection clause reflects a rule against caste legislation; and (b) that legislation discriminating against persons of same-sex sexual orientation would be caste legislation today, even if people in the 1860s would not have looked at it that way.  The only point of disagreement, it seems, is whether laws limiting marriage to opposite-sex couples amount to discrimination against persons of same-sex sexual orientation (I say they do, and the brief disagrees).

On a related point, at Liberty Law Blog John McGinnis argues that the European perspective on same-sex marriage should be irrelevant to an originalist interpretation of the equal protection clause.  I'm not entirely sure that's right.

Briefly, the European Court of Human Rights has held that European human rights law does not require nations to recognize same-sex marriage, even though it has also held that various national laws discriminating against same-sex sexual orientation are prohibited.  Put another way, European human rights law is generally aligned with the argument in the originalist scholars' brief: discrimination on the basis of same-sex sexual orientation is prohibited, but laws recognizing only opposite-sex marriage are not prohibited discrimination.

Does this alignment support the originalist scholars' brief?  I think it does.  My argument is that laws against same-sex marriage -- given our modern understanding of sexual orientation -- are necessarily discriminatory (Jack Balkin makes a similar argument here). But the European court concludes that they are not discriminatory -- that is, that there may be good reasons to allow local jurisdictions to refuse to recognize same-sex marriage, even in a legal regime that generally bans sexual orientation discrimination.

Ordinarily this would not seem relevant to an originalist interpretation of the U.S. Constitution, but this isn't an ordinary circumstance.  The argument for constitutionalizing same-sex marriage depends on a claim about how our understanding of sexual orientation has changed and what the necessary implications of that change are; it insists that laws recognizing only opposite-sex marriage are inherently discriminatory.    But the European view shows that is not necessarily so -- a legal regime could plausibly reject sexual orientation discrimination, based on a modern understanding of sexual orientation, and yet still not require recognition of same-sex marriage.  While I don't find that conclusive, I have to admit that it seems relevant.