Originalism and Same-Sex Marriage

The ongoing string of decisions invalidating state prohibitions on same-sex marriage leads to me to ask the following question:  What should an originalist say about these cases?  I presume the answer must be that they are incorrect.  Same-sex marriage was not permitted in any state until 2004, and there is nothing about sexual orientation in the text of the Constitution or in the debates surrounding the amendments.  Moreover, when the Equal Rights Amendment was defeated in the 1970s, part of the reason offered by its foes was that the ERA would permit same-sex marriage.  Granted, the original understanding of a defeated amendment is not the same as the original understanding of a ratified one, but one would think that this would still matter to some extent to an originalist.

Is there an originalist defense of these cases?  If so, what is it?

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9 Responses

  1. Joey says:

    I think you are asking the right question, because I will make a bold prediction: Some number of decades in the future — and maybe not as many as one might think — there WILL be an originalist defense of these cases. I am eager to hear it.

    Today, this may sound implausible. But that is because same-sex marriage is a current constitutional flight. Once it is over, and settled, for some time, the stakes change. Instead of originalism being a means of critiquing a Fourteenth Amendment right to marriage equality (which is mostly where things sit today), the marriage equality example will become sufficiently obviously correct to most Americans, including conservatives, that it becomes a means of critiquing originalism.

    At that point, it will be time for a an enterprising originalist to come forward and explain why in fact, like Brown — and even the sex discrimination cases (see Calabresi + Rickert) — it is possible to construct a perhaps-counterintuitive originalist defense!

    As a matter of the sociology of originalist thinking, this is inevitable and necessary. It is part of how originalism must periodically rehabilitate itself, each generation, as a way of thinking that is never too far outside of the (then-current) mainstream.

  2. Orin Kerr says:

    If there were a plausible originalist defense of the position, presumably one of the many top lawyers and law professors who have been trying to craft arguments in support of that view for many years would have articulated one. But Joey is right that if the Court establishes such a right and over time it takes on very broad appeal, someone will try to make the claim to defend originalism from claims that it is too far outside the mainstream of public opinion.

  3. Joe says:

    Prof. Balkin argues he has an “originalist” reason to support abortion rights — tied in part to the anti-caste aspect — so don’t really see why there can’t (and as the last comment suggests, was already somewhere) be one here. Some might think the arguments not “plausible” or play True Scotsman with “originalist,” but not sure how far that takes you.

    Also, I have seen the ERA point raised by others more strenuously to show the problem with protecting SSM via the federal constitution. I don’t know how the arguments of some people thirty or so years ago about why a failed amendment shouldn’t be ratified helps that much really. Taken the critics at their word, full respect to their argument horrendum, given sex now is strongly protected via heightened scrutiny, logically gay rights should be too.

    I think the anti-caste argument would have some bite. You would have to apply it to current knowledge and laws, including very different practices involving gays and other groups. I admit the exercise is sort of like an episode of Dr. Quinn Medical Woman, sort of a fictional exercise. But, such is the perils of originalism.

  4. Brett Bellmore says:

    “or play True Scotsman with “originalist,” but not sure how far that takes you.”

    You know, there ARE people who aren’t Scotsmen. Quite a lot of them, as a matter of fact. “No true Scotsman” may be the most widely wrongly invoked of the logical fallacies, though the competition is stiff.

    No, Balkin is not an “originalist”, if the word is to retain any meaning. Not everyone is a Scotsman.

    • Joe says:

      I don’t know why he isn’t an “originalist” and since you use words in various websites in ways that confuse me, well, your mere argument w/o more that he isn’t one is of limited help.

      Prof. Balkin uses the original understandings (the 14A as a general anti-caste measure — unlike the 15A, e.g., Section One is general in scope; as the lede author notes in his bio of the manRep. Bingham, e.g., probably agreed women were protected by it to some degree) in some of this writings. Not “we shouldn’t rely on what they think etc.” Specifically original understandings.

      But, maybe that doesn’t count as compared to a range of others that do. Whatever you think counts. Like “no” meaning “not enough for me” in another thread, sorry, your usage of language is a bit loose.

      • Orin Kerr says:

        I believe Balkin’s strategy is to counter the conservative influence of originalism by making every position originalist. Balkin knows that originalism has a a conservative political valence and widespread public support. To counter that, Balkin is trying to create what he has termed an “ideological drift” — that is, a change in the ideological orientation of a mode of argument. See Balkin, “Ideological Drift and the Struggle for Meaning” here: http://www.yale.edu/lawweb/jbalkin/articles/iddrift1.htm. By using his considerable rhetorical skills to generate originalist-sounding arguments for liberal positions, he helps counter conservative legal thought by taking away the link between originalism and conservative results. Or at least that’s what I’ve always assumed he’s doing, based on his writings.

        • Joe says:

          I put aside his “strategy” here and personally don’t find calling him an “originalist” that useful myself, though just what “widespread public support” people have here at the end of the day is unclear. At the end of the day, if originalism has that much support it is a pretty weak-willed originalism, sort of the sort Justice Kennedy might support. And, it gets mighty hazy. Also, Balkin might be doing satire here, but he has a lot of material to work with.

          I will stick to specific things he has written in which he uses originalism approaches. For instance, he wrote a long paper on “Commerce.” In it, whatever his “strategy,” he appealed to history and original understanding to provide a certain meaning of the Commerce Clause. The paper has objective value on that level. This would not make “every position” originalist.

          Whatever his strategy. Anyway, he’s just a useful target for Brett. Someone else linked up to possible originalist approaches here w/o Balkin’s baggage. As to why they weren’t used, seems like they were somewhat, and part of it is that the ultimate goal is the Supreme Court where 4/5 of the strongest votes aren’t that originalist & the fifth on this issue is at best a weak form of it. Creative arguments didn’t work that well in Windsor (see federalist brief) either.

    • Joe says:

      I didn’t say Balkin himself was an originalist. I pointed out that he showed certain “originalist” arguments for certain positions. See also, the links provided. It would be useful if I knew what “originalism” mean in your opinion though. For instance, if someone focuses on original understanding of some anti-caste principle (not text, not precedent, etc.) and shows that (like school segregation) that such and such rightly applied leads to such and such, that seems “originalist” in some fashion to me. If the result is that the term is all over the place, as it has been as various writers have shown, that isn’t Balkin’s fault. I’ll leave it there.