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Originalism and Same Sex Marriage

It is an unfortunate aspect of modern originalism that we have such a poor understanding of the 14th Amendment.  In my view, the main culprit here is nonoriginalism – in particular, that the Supreme Court and scholars have been uninterested in doing originalist research for the last 75 years of the last century and therefore we never developed a more informed understanding of the Amendment.  As result, we can find plausible originalist arguments for and against same sex marriage.

Over at the Originalism Blog, Mike Ramsey notes how an originalist might reach the conclusion that the 14th Amendment requires same sex marriage.  I agree with him that given certain plausible assumptions one can reach the conclusion that the original meaning protects same sex marriage.  The basic move, as Mike and others have developed it, is that discrimination against gays is treated as similar to racial discrimination based on modern understandings of homosexuality.

The opposite position about the original meaning is ordinarily based on an expected applications approach: the argument is that the framers and ratifiers of the Amendment would never have understood the Amendment to require same sex marriage.  Thus, people conclude that the Amendment does not protect same sex marriage, yet it might be argued that this interpretation is inconsistent with an original public meaning (or textualist) approach.  After all, the question is, what is the meaning of equal protection rather than what would the framers have done.

In my next post, I will offer an interpretation of the equal protection clause that provides a textual interpretation that does not yield a requirement of same sex marriage.  This interpretation is also a plausible interpretation of the 14th Amendment.

Reader Discussion

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on April 01, 2013 at 10:43:48 am

I hope you will also address the following question. "What does this disagreement tell us about how much originalism can really settle, practically speaking?"

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Philip W
on April 01, 2013 at 11:04:48 am

Philip,

Good question. I suspect the answer is something along the lines of: "The originalist approach to computer repair does not tell you what diagnostics to run or what parts to replace; it only tells you how to get the case open."

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z9z99
on April 01, 2013 at 15:36:28 pm

Philip W: I have already addressed this. If we had much more discussion of these issues, then I think the answers would be much clearer. The problem is that people have not been studying these issues for very long.

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Mike Rappaport
on April 01, 2013 at 20:37:59 pm

Coke held that the law, rightly understood, is always in tension between the artificial perfection of reason that is the law of the land today, and the laws of nature, which are eternal and unchanging. In modern English, there is an important and substantial difference between the idea that the law rests upon a principled foundation and the idea that the idea of the constitution is not a positive code of law at all.

P.S. What do you think of Fuller's dissent in Wong Kim Ark? That Harlan joined, two years after Plessy suggests that making soil, rather than compact theory, the foundation of citizenship might be problematic.

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Richard S

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