As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.
In my prior post, I mentioned that I believe there is an originalist case both for constitutionally requiring same sex marriage and for not requiring it. I briefly mentioned the case for requiring it and then noted that most originalist discussions of the case for not requiring it seemed to rely on original expected applications arguments (which might be thought to be inconsistent with textualist originalism). Here, I want to briefly set forth the outlines of a textualist case for not requiring same sex marriage.
Let’s assume that the Equal Protection Clause (or possibly the Privileges or Immunities Clause) adopted an equality requirement that prohibited class legislation that singled out a group for special burdens. Of course, all laws classify and therefore one needs a principle that determines which classifications are constitutional and which not. It seems that laws that identified irrelevant characteristics of groups, such as race, were deemed to involve arbitrary distinctions that resulted in class legislation.
But it is clear that, although this equality principle prohibited arbitrary distinctions, it allowed laws that drew distinctions based on traditional moral principles. There are various arguments that support this conclusion. One views a law that is based on a traditional moral notion as not making an arbitrary distinction. Another notes that the police power was thought to limit all rights, and this power allowed for regulation to protect the health, safety, welfare, and morals of the people.
At the time of the 14th Amendment, laws prohibiting gay sex as well as those not recognizing same sex marriage would have been justified as necessary to protect the morals of the people. Today, laws prohibiting polygamy might also be justified on this basis (although some might argue that they would be necessary to protect the equality of the sexes).
Obviously, opinions today about same sex marriage have changed. While in 1868 virtually everyone would have regarded such marriages as immoral, today the matter is contested, with the country perhaps being split. Thus, the question is what are the conditions necessary for a traditional moral notion that rendered a distinction nonarbitrary to no longer serve that function – that is, when does a traditional moral notion no longer have the force necessary to justify a classification?
Given this analysis, there are a couple of ways that one might conclude that same sex marriage is not constitutionally required. First, one might argue that a traditional moral notion can be relied upon to justify a classification until there is a consensus that rejects that moral view. While the morality of same sex marriage is contested now, the requisite consensus accepting its morality does not exist. Of course, one can imagine the argument that once a traditional moral notion becomes contested, that is enough to render it no longer capable of justifying a classification. Or one can imagine the argument that once the traditional moral notion becomes contested, that is enough to allow judges to conclude, based on their own analysis, that that moral notion is insufficient to justify the classification. But both of these positions seem problematic. It seems hard to believe that once a matter is contested, that is enough to render relying upon it unconstitutional. Put more concretely, it seems hard to believe that once prohibitions on gay marriage are contested, then gay marriage must be required throughout the country.
An objection to this analysis is that it fails to acknowledge that sexual orientation is very similar to race. Under this view, the similarity of sexual orientation to race plus the contesting of the claim that same sex marriage is immoral is sufficient to deny the traditional moral notion of its force. This argument might or might not be a reasonable intepretation of the 14th Amendment. But an interpreter might resist this conclusion by denying that sexual orientation is sufficiently similar to race. While modern understandings hold that sexual orientation is not a matter of choice (like race), sexual orientation involves a host of differences in behavior that race does not. Thus, one might conclude that race and sexual orientation are not sufficiently similar.
In the end, all of this is very tentative. My point here has been to argue that there are textualist originalist arguments for concluding both that same sex marriage is constitutionally required and for concluding that it is not.