The Volokh Conspiracy

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Volokh Conspiracy

More on originalism and same-sex marriage


Larry Solum and Ilya Somin have authored generous responses to my recent post on whether there is an originalist case for a right to same-sex marriage. Here's my reply, first to Larry Solum and then to Ilya Somin.

1) Larry Solum's response is focused on my first caveat, the definition of originalism. In addressing whether there is an originalist argument for same-sex marriage, I used a definition of originalism that is a sort of constitutional Turing test: I looked for evidence that the originalist argument is different from non-originalist arguments for the same result. Solum has a different definition. To Larry, originalism is "a theory term, the meaning of which depends on either stipulated definitions or consistent usage among constitutional theorists." So Larry offers a definition of orginalism that reflects what the theorists say. Originalism is difficult to define, he explains, but most academic theories of originalism "cluster around two core ideas, fixation and constraint"

The Fixation Thesis: The communicative content of each constitutional provision is fixed at the time the provision is framed and ratified.
The Constraint Principle: Constitutional practice (e.g., the decision of cases and the articulation of doctrine) should be constrained by the fixed communicative content of the text.

Almost every originalist accepts some version of these two principles, but originalists differ about just how constraining the text should be. At a minimum originalists believe that constitutional practice must be consistent with original meaning: that requires that no proposition of constitutional doctrine contradict the text and that every provision of the text be fairly reflected in constitutional doctrine. A maximalist version of the constraint principle would require that each and every proposition of constitutional doctrine be fairly traceable to the text.

Originalism is a family of constitutional theories that accept fixation and at a minimum the consistency version of constraint[.]

Using that definition, Larry notes, there are indeed some originalist arguments for a right to same-sex marriage. And under Larry's definition of originalism, that seems surely true.

I appreciate Larry's careful and thoughtful contribution. And at some level, definitions are just definitions. With that said, I find Solum's definition less useful than mine for the purposes of my post.

Here's why. The power and influence of originalism—and thus the reason people care whether there is an originalist argument for same-sex marriage—is not connected to how theorists use the term originalism. People care about whether there is an originalist case for same-sex marriage because originalism has developed a significant following within the broader political and legal community. It's a frequent topic of Supreme Court confirmation hearings; it's the subject of speeches by leading politicians; and it's even something that major political movements in the United States sometimes take on as part of their platforms. Polling indicates that members of the public have an opinion about it, too.

These judges, politicians, activists, and members of the public have a conception of what originalism means. So if we're going to ask whether there is an originalist argument for same-sex marriage, I think it's helpful to stay at least somewhat connected to the public understanding of the term. That's what I was trying to achieve with my Turing test approach. In the broader political and legal community, originalism is considered powerful and important because it can constrain judges in ways that other theories don't. It's thought to make a difference as to how judges decide cases. So my Turing test asks whether the originalist arguments for same-sex marriage are distinct from the other arguments in favor of same-sex marriage. It's designed to assess whether there is an originalist argument for same-sex marriage in a sense that participants in the public debate over originalism would recognize.

Larry's contrasting definition fairly and helpfully describes what academic theorists do and say. But I fear it does so by making the answer to whether there are originalist arguments for same-sex marriage pretty much irrelevant to most people. If we accept the full range of what today's theorists say, it no longer makes sense to ask whether there is an originalist argument for a position. There are now originalist arguments for everything. For example, let's say I claim that the Third Amendment establishes that the Supreme Court must consult a Black Sable ferret named Sarah before deciding any cases. According to Larry's definition, there is indeed an orginalist argument that the Supreme Court must consult a Black Sable ferret named Sarah before deciding any cases. It's the argument I just mentioned, that this meaning was adopted by the Third Amendment. Maybe that's a bad originalist argument, but it satisfies the Fixation Thesis and the Constraint Principle.

We could define terms that way. But given the public audience interested in originalism, I think it's more helpful to stick to a meaning closer to the ballpark of that public understanding.

2) Now on to Ilya Somin's comments. As I noted in my post, and Ilya agreed, the purportedly originalist arguments for a constitutional right to same-sex marriage work in two steps: "(A) assert that the Fourteenth Amendment adopts a broad principle, and then (B) argue that same-sex marriage laws violate that principle." In my post, I argued that the arguments aren't providing enough evidence at step (A), in that they have not established 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.

In his reply, Ilya spends the majority of his response on step (B). Ilya argues that there are originalist arguments for (B) because we can answer (B) with respect to modern understandings of the principle instead of original expected applications of the principle. To be clear, though, my argument was about (A) rather than (B). I realize the disagreement among originalists as to how to answer (B), but I think the bigger problem here is step (A).

On argument (A), I read Ilya as offering just a short sentence in response, which essentially echoes the second caveat I noted in my post. Ilya writes: "For example, my argument that laws banning same-sex marriage are unconstitutional sex discrimination relies on Steve Calabresi's and Julia Rickert's extensive historical evidence showing that people at the time of enactment understood it to ban laws discriminating on the basis of gender in cases where those laws imposed arbitrary 'class' discrimination, as opposed to responded to genuine differences in capabilities between the sexes." As I mentioned in my discussion of that claim in my second caveat, I think still there's a missing argument for how that principle (assuming that the history there is correct, which I don't know) applies to marriage laws. But as I wrote in my first post, I acknowledge that the Calabresi and Rickert article at least purports to give a historical analysis along the lines of what seems to be necessary for purposes of step (A).

UPDATE: In his latest reply, Ilya claims that he has already answered how same-sex marriage laws violate the the principle of sex discrimination. According to Ilya, it's obvious: Same-sex marriage laws hinge rights to who you can marry based on your gender, and are thus are gender-based and by force of logic must necessarily discriminate based on sex. The problem I have is that this depends on rejecting some versions of the sex-discrimination claim and embracing others, without an explanation of why that choice is being made. In the Calabresi and Rickert article, the claim is that the public understanding of the Fourteenth Amendment was designed to stop laws that treated women as the lesser sex. As Matilda Joslyn Gage put it: "Men are the Brahmins, women the Pariahs, under our existing civilization." (p.59-60) If that's the kind of sex discrimination that the Fourteenth Amendment was designed to end, then it's not clear how it impacts same-sex marriage. Laws requiring opposite-sex marriage are not premised on women being valued less than men. Given that, 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. Maybe the broader principle is the right one, but that's an argument that hasn't yet been made.

UDPATE: I have fiddled slightly with the text shortly after posting.