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Jack Balkin and Steven Smith on the Originalist Scholars' Brief in the Same-Sex Marriage Cases
Michael Ramsey

At Balkinization, Jack Balkin and my colleague Steve Smith have an interesting exchange on two originalist-oriented amicus briefs in the same-sex marriage cases.  The briefs are here, on behalf of the Cato Institute, Willliam Eskridge, Steven Calabresi and Ilya Shapiro; and here, on behalf of nine "Scholars of Originalism."

Professor Balkin comments in part (it is a long and rich post that defies excerpting):

[The Cato brief] is closest to my own position in Living Originalism.  The way I would put it is that although we are not bound by the original expectations of the framers, we should look to the principles they espoused, and draw analogies to the historical problems that they faced and sought to remedy, when we fashion constructions of the Fourteenth Amendment to resolve contemporary questions of constitutional law.  Or put in the words of Robert Bork, our "responsibility is to discern how the framers’ values, defined in the context of the world they knew, apply in the world we know."

It follows, then, that we should ask what the principles of class legislation, caste legislation, and equality before the law mean in practice in today's world in the context of gays and lesbians who seek the right to marry.

He then criticizes the originalist scholars' brief, commenting in part:

[The brief argues that] [d]enying gays and lesbians the right to same-sex marriage is not class legislation because same-sex marriage is not "marriage."  Gays and lesbians are free to marry anyone they choose, as long as the[y] engage in "marriage," which is between opposite-sex couples.

If the laws challenged here defined some class of persons (such as gay and lesbian persons) and denied such persons the legal right to marry, these laws might be considered class legislation. But traditional marriage laws do no such thing; under these laws, persons of any sexual orientation are wholly free to marry if they so choose.

I don't think that this definitional argument is an adequate response to the class legislation claim. That is because it doesn't really take seriously what it means to be gay or lesbian in our society today.  It does not perform the task set forth by Judge Bork: "discern[ing] how the framers’ values, defined in the context of the world they knew, apply in the world we know."   The argument treats being gay or lesbian as something one might discard or suppress if one wanted the benefits of a (loveless) marriage. So when the Originalism Scholars say, without any hint of irony or self-consciousness, that denying gays and lesbians the right to marry those they love can not possibly be class legislation, because denying them the right to marry does not "restrain" gays or lesbians to "a particular course of life . . . allowing only a limited enjoyment of property and relative rights," one wants to know what world they think they are living in.

Steve Smith, who joined the originalist scholars brief, has this response as a guest blogger: Are we really all living originalists now? Here is an excerpt:

If original meaning is not identical to “original expected applications,” then is there any stopping place short of the Grand Style, abstract principles approach favored by Jack and the Cato Brief?  If there isn’t, then perhaps Jack is right: whether or not we admit it, we are all living originalists (because there really isn’t anything else to be).

It is a hard question, I think.  But there at least seem to be intermediate possibilities.  Elsewhere I have cautiously proposed an approach that I reluctantly called “decisional originalism.”  This was only a tentative suggestion, and I have no reason to suppose that other signatories agree with it; they may favor other approaches or limiting principles.  Jack is surely right that there are interesting theoretical questions here.  The Scholars’ Brief acknowledges this fact as well, although, being a brief, it does not launch into an academic exploration.  Contrary to Jack’s impression, the brief nowhere suggests that he or others who share his approach are not entitled to be considered “originalists,” nor does the brief insist on any sort of originalist “purity.”  On the contrary, and for obvious reasons, it tries to be as generic as possible in its originalism, and explicitly declines to take a position on debates between “intentionalist” and “public meaning” versions of originalism.

As a result, and speaking for professors who almost certainly do not share a single view, the Scholars’ Brief itself does not say exactly what limiting principle should guide the originalist inquiry.  As it happened, this seemed unnecessary, because the interpretation offered by the Cato Brief itself would not cover traditional marriage laws such as those before the Court.  The Cato Brief argues, as noted, that the Fourteenth Amendment prohibits “class legislation.”  And although the brief is somewhat fluid about what this fluid concept means, its most pertinent definitions come from nineteenth-century sources which said that “class legislation” refers to “special codes for one class of citizens,” or to “laws restraining the activity of a class of persons, more or less strictly defined, to a particular course of life, and allowing only a limited enjoyment of property and relative rights.”

Under these definitions, ... traditional marriage laws would not be “class legislation” under these nineteenth-century definitions.  This conclusion is not a “definitional argument”, as Jack seems to think, of the kind that says “‘marriage’ just means and has to mean X”; it is an observation about what the marriage laws do and, more importantly, do not do.   And to observe that marriage laws do not enact a “special code for one class of citizens” is not to deny that the laws have a disparate impact on gay or lesbian persons; the Scholars’ Brief expressly acknowledges that impact.  But disparate impact does not equal “class legislation,” at least as that term is defined in the Cato Brief.

And on a more theoretical level he concludes:

But suppose that Jack is right (as I concede, sincerely, he might be): once we acknowledge that original meaning is not confined to “expected applications,” there is no viable stopping point short of the “grand principles” approach that he and the Cato Brief advocate and practice.  In that case I think we would face the really hard question.  What is the point of all of the deliberation and debate (with examples and counterexamples, asserted and denied), and the crafting and drafting and redrafting of constitutional provisions, if those provisions will shortly be interpreted in terms of lofty principles with implications (to be enforced, by judges, against democratic majorities) that the enactors never intended, imagined, or desired?  Why would sensible citizens and legislators engage in this peculiar exercise, bind themselves and their descendants in this profoundly unpredictable way?

. . . 

This, I think, is the really essential and intractable conundrum that “living constitutionalism” leaves us with.  Jack Balkin has written insightfully and even movingly about the imperative of maintaining continuity with our past, and with those who came before us.  To my mind, though, he has not offered any satisfying answer to this conundrum.