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Originalism in the Marriage Equality Cases

April 13, 2015
Jack recently highlighted a pair of dueling amicus briefs in the upcoming marriage equality cases, one filed by the CATO Institute and one by a number of “Scholars of Originalism,” that raise important questions about originalism as a form of constitutional interpretation.   These briefs debate whether original meaning or original understanding has pride of place in constitutional interpretation, what Jack calls “yet another example of the continuing debates within originalism over who has the best version.”  Jack argues that the back and forth in these briefs, and particularly the agreement that Romer v. Evanscorrectly interpreted the Equal Protection Clause, shows that “we are all living originalists now.”  In a thoughtful, nuanced reply, Steve Smith, one of the professors who joined the “Scholars of Originalism” brief, agrees with Jack that “original meaning cannot simply be equated with ‘original expected applications,’” but otherwise resists the pull of Jack’s view of “living originalism.” 
Other amicus briefs filed in the marriage equality cases do a deeper dive into the text and history of the Fourteenth Amendment, debating what the history shows.  The brief filed by my organization, the Constitutional Accountability Center, lays out the original meaning of the Amendment, illustrating that the text, drafting history, and debates over the Fourteenth Amendment all demonstrate that the constitutional guarantee of equal protection establishes a broad guarantee of equality designed to protect all persons from state-sponsored discrimination.  (The CATO brief covers some of this ground as well, though its brief focuses more on the development of equality principles in antebellum America).  Under the text and original meaning of the Fourteenth Amendment, the Amendment’s guarantee of equality applies to all gay men and lesbians who wish to exercise their right to marry the person of their choice.   
Three key pieces of evidence show how powerful this view is.   First, in drafting the Amendment, the Framers specifically rejected narrower equality guarantees that would have proscribed only racial discrimination in favor of a broad equality guarantee that would protect all persons.   The decision to embrace equality for all was a conscious choice – made by the Joint Committee on Reconstruction on April 28, 1866 – bringing the Constitution back in line with basic principles of equality set forth in the Declaration of Independence.  It is fitting that the Justices will hear the marriage equality cases 149 years to the day after the Framers made the momentous choice to guarantee equal protection for all.  
Second, debates in Congress, speeches on the campaign trail, and editorials published in the press all made clear that the Amendment would establish equality for all.   As our brief demonstrates, the Framers time and again explained that the equal protection guarantee “establishes equality under the law,” “abolishes all class legislation in the States[,] and does away with the injustice of subjecting one caste of persons to a code not applicable to another,” putting in the Constitution “the declaration that all citizens were entitled to equal rights in the Republic,” and placing all “throughout the land upon the same footing of equality before the law, in order to prevent unequal legislation.” 
Third, racial discrimination against African Americans was not the only immediate issue of the day.  White Unionists in the South faced pervasive discrimination because they had fought and helped win the Civil War. Immigrants, mainly of Chinese descent, were subject to a barrage of discriminatory laws in California and elsewhere.  The Framers gave the Equal Protection Clause a broad sweep to prevent these kinds of state-sponsored discrimination and others that might arise in the future.       
In the marriage equality cases, South Carolina, in its amicus brief  supporting the states, takes a radically different view.  It argues that the Fourteenth Amendment's original meaning was to prevent “racial discrimination and nothing else” and that “displacement of state marriage laws was the last thing the framers intended.”  To support this view, South Carolina points to congressional debates in 1866 (some concerning an earlier version of the Fourteenth Amendment that failed in Congress, some concerning the Civil Rights Act of 1866), in which a number of members of Congress recognized the authority of states to deny married women the same rights that their husbands enjoyed.  South Carolina claims that since the Framers of the Fourteenth Amendment permitted these forms of sex discrimination, they clearly would have also permitted laws that banned same-sex marriage.  
This is bad originalism at its worst – the debates cited by the state do not concern the equal protection guarantee directly – and it flies in face of the text of the Fourteenth Amendment ratified by the American people, which guarantees the equal protection of the laws to all persons, not only to men.  South Carolina finds its friends in the crowd, while ignoring the mass of evidence, clearly reflected in the text of the equal protection guarantee, that the Fourteenth Amendment was designed to secure equality under the law for all persons.   
Perhaps that’s why, when Chief Justice Roberts discussed whether the equal protection guarantee applies to laws that discriminate against women during hisconfirmation hearing, he insisted that the proper approach was to apply the text’s broad grant of equality under the law as written by the Framers.   “[T]hey didn’t write the Equal Protection Clause in such narrow terms. . . . [T]hey chose to use broader terms, and we should take them at their word.”  As Roberts emphasized, the Equal Protection Clause is written as a guarantee of equality for all, not simply as a prohibition on racial discrimination.  
When the Justices hear oral argument in the marriage equality cases later this month, they should remember Roberts’s advice to “take them at their word.” The Framers made a conscious decision to write the Fourteenth Amendment as a broad guarantee of equality for all, preventing majorities in the states from discriminating against any person or group of persons.  It is the Supreme Court’s job to enforce the Constitution’s guarantee of equality for all.
This post is cross-posted at Balkinization.
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