Originalism and same-sex marriage revisited—a further rejoinder to Orin Kerr

|The Volokh Conspiracy |

In a thoughtful recent post, Orin Kerr responds to my critique of his claim that there is no serious originalist argument for a constitutional right to same-sex marriage. He also responds to Larry Solum's contribution to the debate (which, I believe, largely supported my side in the original exchange, at least on the main point of whether there are plausible originalist rationales for a right to same-sex marriage).

Orin's post makes several interesting points. But in the end, I think it confirms my original surmise that Orin's argument works, if at all, only if he adopts an idiosyncratic definition of what qualifies as originalism. Orin clarifies his definition of the latter by saying that a distinctively originalist argument must be "different from non-originalist arguments for the same result." If this means that an originalist rationale for same-sex marriage must merely be different from some or many, nonoriginalist arguments, then the all of the arguments listed in Orin's original post easily qualify. If, however, they must be different from all possible nonoriginalist arguments, then nothing will ever qualify. There is an incredibly broad range of different nonoriginalist theories of interpretation. On any given issue, it is likely that at least one of them will reach the same conclusion by roughly the same path as any given version of originalism would. More generally, whether an originalist rationale for result X is similar or different from a nonoriginalist one will depend on the issue in question, and on the particular nonoriginalist theory we are comparing it to.

As I suggested in my previous post, the more reasonable interpretation of originalism—and one more in line with the way the term is used by both experts and laypeople—is that an originalist argument must be based on the understanding of the relevant constitutional provision at the time it was enacted. By contrast, living constitution theories of interpretation often appeal to principles that may not have been considered by anyone at the time of enactment. Whether the principle understood at the time of enactment is the same or different from the one appealed to by nonoriginalist advocates of the same result, will vary from case to case.

I agree with Orin that, in discussing originalism, "it's helpful to stay at least somewhat connected to the public understanding of the term." But I think my definition is a lot closer to the public understanding than Orin's. In addition, as I explained earlier, it also has the advantage of not excluding from the definition of originalism the interpretative theories of many of the leading originalist scholars of the last several decades.

Orin also argues that my earlier response failed to address his claim that the various originalist rationales for same-sex marriage we are discussing fail to prove "that the broad principle alleged to be adopted at the time of the Fourteenth Amendment was actually contemplated by the public meaning at or near the level of generality asserted." I think I actually responded to this claim at some length in the previous post by explaining why it is only valid if the level of generality in question must be far more specific than is required by most currently accepted theories of originalism.

Finally, Orin suggests that my reliance on Steven Calabresi's and Julia Rickert's extensive historical evidence that the Fourteenth Amendment restricts sex discrimination has "a missing argument for how that principle (assuming that the history there is correct, which I don't know) applies to marriage laws." But the "missing" argument is in fact provided in my 2012 post on the subject that I linked in my first contribution to this exchange. Calabresi and Rickert's is relevant to all laws that discriminate on the basis of sex, and my 2012 post summarizes the fairly straightforward way in which laws banning same-sex marriage pretty obviously do discriminate on the basis of sex, since who you are allowed to marry under those laws is entirely dependent on whether you are a man or a woman. In addition, new factual evidence about the nature of same-sex relationships can legitimately lead originalists to revise their understanding of the way the antidiscrimination principles of the Fourteenth Amendment apply to such cases.

Revising the application of fixed principles to take account of improved understanding of relevant is not only compatible with originalism, but actually an essential element of most, if not all, versions of the theory. Without it, the very principles that originalists seek to conserve and enforce are likely to disappear over time, as our knowledge increases and social conditions change from those prevalent at the time of enactment.

UPDATE: In an update to his most recent post, Orin claims that my reliance Calabresi and Rickert's argument is still misplaced because "it's not clear that the sex-discrimination principle that Calabresi & Rickert argue (whether rightly or wrongly) was part of the original 14th Amendment render suspect all laws that define rights in terms of gender or only render suspect those laws that are based on a judgment that men and women as individuals are of different value." I think it's pretty clear that their logic renders suspect all gender classifications that affect the distribution of important legal rights. Calabresi and Rickert themselves conclude that their analysis of the original meaning of the Fourteenth Amendment, combined with the Nineteenth Amendment, "provides a legitimate basis for striking down almost all sex-discriminatory laws."

But even if they only apply to gender-discriminatory laws that, in Orin's words, "treated women as the lesser sex," laws that restrict marriage based on gender pretty clearly qualify. After all, one of the main reasons why most nineteenth century Americans (and many in later years too) could not conceive of the possibility of same-sex marriage is that they assumed that marriage required distinct gender roles in which the status of the female partner was clearly subordinate to the male one (who had the status of head of the household, both legally and in terms of social norms).