The Volokh Conspiracy
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My friend and co-blogger Ilya Somin has blogged a few times about the originalist case for a right to same-sex marriage. Reviewing the arguments, he recently concluded: "[I]t is no longer possible to claim that there is no serious originalist case for striking down laws banning same-sex marriage." I disagree. It is possible to claim that, and I'll even prove it by making the claim right now: As far as I can tell, there is no serious originalist case for a right to same-sex marriage. Or at least that's what I think so far, based on the arguments that Ilya has provided and linked to in his posts. I'll explain my current thinking here and invite others to show why I am wrong.
Let's start by reviewing the originalist arguments that Ilya has mentioned.
The Calabresi argument. In his essay posted on SSRN, Steven Calabresi's primary originalist case for a right to same-sex marriage runs something like this. In U.S. history, it has been common for major political documents, such as the Declaration of Independence, the Articles of Confederation, and many state constitutions, to say that all men are created free and equal. Concerns with freedom and equality generally undergirded legal reforms in the Reconstruction era, including the Reconstruction era constitutional amendments. Laws forbidding same-sex marriage violate principles of freedom and equality, and therefore they violate the Fourteenth Amendment, which of course was one of the Reconstruction-era constitutional amendments.
The Ramsey argument. Michael Ramsey has blogged a tentative originalist case for a right to same-sex marriage. It runs like this: If we assume that an originalist Equal Protection clause establishes an anti-discrimination or equal treatment rule that applies to choices as to who a person can marry, our modern understanding that laws prohibiting same-sex marriage are based on discrimination and inequality can lead to the result that such laws violate the original understanding of the Equal Protection clause.
The Eskridge argument. As Ilya recently noted, William Eskridge has briefly blogged an originalist case, too. According to Eskridge, Justice Kennedy's 1996 opinion in Romer v. Evans began by recognizing that an original meaning of the Fourteenth Amendment was to bar caste or class legislation. Laws prohibiting same-sex marriage amount to case or class legislation, so they violate the originalist conception of the Fourteenth Amendment.
The Somin argument. Finally, Ilya has blogged that he thinks laws prohibiting same-sex marriage amount to unconstitutional sex discrimination. In his latest post, he describes this as an originalist argument, linking to this 2013 post which in turn relied on this article by Steven Calabresi and Julia Rickert arguing that sex discrimination was included in that original meaning of the Fourteenth Amendment. With the benefit of modern understanding, we can now see that laws prohibiting same-sex marriage involve sex discrimination, so they are unconstitutional. (Calabresi briefly makes a version of this argument at the end of his recent essay, too.)
The structure of these four arguments appears similar. They each work in two basic steps: (A) assert that the Fourteenth Amendment adopts a broad principle, and then (B) argue that same-sex marriage laws violate that principle. The arguments differ slightly in the nature of the broad principle that they assert the Fourth Amendment recognizes. To Calabresi, the principle is freedom and equality; to Ramsey, it's equal treatment in marriage choices; to Eskridge, it's rejection of caste legislation; and to Somin, it's rejection of sex discrimination.
These are important arguments, but here's where I am stuck: I don't yet see how these are distinctly originalist arguments. My primary problem is at step (A), the articulation of the broad principle. I am not an originalist theoretician, so maybe I am missing something. But I would think that for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment. From what I can tell, the originalist arguments made so far haven't really done that. As a result, I'm not sure there is anything distinctly originalist about these claims.
Consider Calabresi's primary argument about same-sex marriage, which is the most thoroughly developed of the four. Calabresi reasons that important historical political documents talked about freedom and equality, and that these basic concepts were an important influence on the 14th Amendment. So far, that seems hard to dispute. The problem, it seems to me, is that important historical documents talk about a lot of broad principles. And the idea of a general principle having an influence isn't the same as directly adopting a particular conception of that principle. Given that, it's not clear which of those broad principles made it into the Constitution. Presumably, not all of them did. To bridge the gap, and to show that the specific principle was adopted at the time, I think we need the originalist step of showing how the specific text was originally publicly understood as recognizing that identified principle.
Without that step, I fear that what are being described as originalist arguments may just be products of the Level of Generality Game with the word "originalist" tacked on. Most students of constitutional law will be familiar with the Level of Generality Game, as it's a common way to argue for counterintuitive outcomes. The basic idea is that any legal rule can be understood as a specific application of a set of broad principles. If you need to argue that a particular practice is unconstitutional, but the text and/or history are against you, the standard move is to raise the level of generality. You say that the text is really a representation of one of the relevant principles, and you then pick a principle at whatever level of abstraction is needed to encompass the position you are advocating. If the text and/or history are really against you, you might need to raise the level of generality a lot, so that you get a super-vague principle like "don't be unfair" or "do good things." But when you play the Level of Generality Game, you can usually get there somehow. If you can raise the level of generality high enough, you can often argue that any text stands for any position you like.
The basic move of raising levels of generality isn't necessarily improper, to be sure. Some theories of constitutional interpretation expressly endorse it. Some rely on it heavily. But whatever we think about raising levels of generality in a general sense, I would think that originalist theories of interpretation place some important limits on it. I would think that for a claim to be distinctly originalist—that is, for it to be identifiably different from non-originalist claims—the case would need to be made that the principle at the level of generality actually identified and applied was one that the text was fairly understood to contemplate at the time the language was adopted. We don't need evidence that the particular rule adopted was a specific intended application of the text. But I think we need evidence that the principle was contemplated at the time of adoption at (or at least plausibly near) the level of generality at which it is to now be applied. And I haven't seen that argument developed, at least yet, in the originalist arguments for a right to same-sex marriage.
That's my tentative sense, at least. And let me make that sense even more tentative by adding three important caveats:
First, I recognize that my view hinges on a particular conception of what counts as an originalist argument. In my view, for an argument to be an originalist argument, it has to proceed along lines that are identifiably different from non-originalist arguments. Some will disagree with that and take a broader view of what counts as an originalist argument. Others will agree with that but have a different standard for what makes an argument originalist. There may be no way out of this definitional thicket, except perhaps to say that I think my definition reflects widely-shared understandings of what counts as an originalist argument better than others.
Second, I acknowledge that the Calabresi and Rickert article on sex discrimination and the 14th Amendment does at least purport to establish its principle in the original public understanding of the 14th Amendment. I don't know whether its reading of the relevant history is persuasive. But at least it tries to satisfy the kind of standard that I am suggesting is needed for an argument to be originalist. That's important to note. With that said, I wonder if there's a step missing in that argument, too, which relates to part (B) of the argument. Specifically, it's not clear to me that the principle of sex discrimination identified in the Calabresi & Rickert article is the same principle of sex discrimination that Ilya has discussed in his blog posts as being a ground for finding same-sex marriage laws unconstitutional. There are some versions of a sex discrimination principle that would make anti-SSM laws unconstitutional. But there are other versions that would not. And we need a more explicit argument for why that the version of the sex discrimination principle claimed to have been recognized at the the time of the 14th Amendment's adoption was a version that is inconsistent with laws prohibiting same-sex marriage.
Third, recalling the briefing a few years ago in McDonald v. City of Chicago that advocated a broad understanding of the 14th Amendment under the privileges or immunities (P/I) clause, I would think that some might make a originalist argument for a right to same-sex marriage that relies on those broad sources under the P/I clause. For example, Representative Rogers said in 1866 that the right to marry was a privilege recognized by the 14th Amendment. See Cong. Globe, 39th Cong., 1st Sess. 2538 (1866). And Corfield v. Coryell had said that privileges or immmunities "cannot be defined" but include the right "to pursue and obtain happiness and safety," which could be construed perhaps as encompassing a broad marriage right. So perhaps there are originalist arguments to be made along those lines under the P/I clause, although I haven't seen them developed so far based on the limited research I have done.
That's the way I look at it right now, at least. Am I wrong? Counterarguments and disagreements very welcome.
UDPATE: I fiddled with this a bit shortly after posting it.