Originalist Defenses of Overturning Same-Sex Marriage Bans: Really?

By Eric Segall

It is official. We are all originalists now, and interestingly, at the same time, there are no real originalists left. I know this because a number of prominent originalists have suggested that the 14th Amendment, as originally understood, prohibits bans on same-sex marriage. If that is true, originalism can mean anything and everything.

First, let's start with two famous folks who strongly self-identify as originalists but don't believe or haven't yet said that gays and lesbians have a right to marry (each other). I have already provided substantial evidence in this essay that neither Justice Scalia nor Justice Thomas take originalism seriously (at least when deciding cases) as there are huge swaths of constitutional law through which they have both rammed through a robust and living Constitution. No other Justice on the Court comes close to qualifying as an originalist.

What about people not on the Court? Robert Bork is dead. Ed Meese no longer says much. Libertarian Randy Barnett and liberal Jack Balkin both self-identify as originalists but Randy advocates the type of strong “judicial engagement” approach to constitutional law that would cause Alexander Hamilton to roll over in his grave. Jack thinks Roe can be justified on an originalist basis and Randy is sympathetic to that thesis, which one would think would disqualify them both from the originalist mantle.

If you need more proof, the rather startling title of Jack’s book, “Living Originalism" gives the game away. As Mike pointed out a few years ago, this new brand of originalism articulated by two of our most prominent constitutional scholars provides conservatives and libertarians the benefits of pointing to a famous liberal (Jack) they claim has adopted their approach (exactly what Randy did here), while at the same time allowing them to reach virtually any result they want to (like the 14th Amendment as originally understood gives women the right to terminate their pregnancies). 

I have said to both Randy and Jack that their approaches have little to do with any serious originalist perspective when it comes to hard cases and both responded (at different times) that their originalism is not necessarily for judges but for the populace at large. Ok, fine, their originalism has little to do with judges. Maybe they are originalists “outside the courts,” and Professor Tushnet has won after all.

When most people talk about originalism, they really are concerned with how judges decide hard cases not resolved by clear text. Over the last few weeks, a number of academics have indeed argued that there is a reasonable argument that same-sex marriage bans can be overturned (by judges) on an originalist basis.

How is it possible for a true originalist to argue that the people of 1868 who ratified the 14th Amendment believed that gays and lesbians had a right to get married when no one alive back then actually thought that (maybe not even one single person)? The answer is that many originalists don’t care about what people in 1868 thought were the specific applications of the constitutional text they adopted. What matters are the broad principles they were expounding. So, Steven Calabresi, Ilya Somin, and Michael Ramsey have all suggested that originalists can give their blessing to the inevitable June decision by Justice Kennedy striking down same-sex marriage bans nationwide (though I bet there will be an “originalist” dissent from you know who). 

I don’t have to write an original response to these arguments because Orin Kerr already has said most of what needs to be said and I am trying to make a more general point. Orin responded as follows:
As far as I can tell, there is no serious originalist case for a right to same-sex marriage….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. 
Orin is quite obviously right. Professor Calabresi spends eight pages of a seventeen page article on pre-1800 notions of equality. He then devotes most of the next nine pages to inalienable rights and gender discrimination and only gets to sexual orientation discrimination on page sixteen (of seventeen remember). This is almost all manipulation of the level of generality (at a high level) with a brief nod to the facts at the end.

I could have saved him the trouble. To arrive at a broad enough notion of equality to justify overturning bans on same-sex marriage we don’t need a history lesson going back to 1641 (yes that is where he starts). Just read the text. Are gays and lesbians “persons,” and are they being denied the “equal protection of the laws?” Yes and yes. Does the government have a strong reason (or even a rational) reason for treating them differently? No.

There are a few relative newcomers on the originalism block like Will Baude and Stephen Sachs. The latter has written a complex and provocative article, which I think the former likes. Professor Sachs argues that originalism is not a theory of interpretation but of positive law that posits that “law, whatever it is, stays the same until it’s lawfully changed.” What originalism “requires of legal change is that it be, well, legal; that it be lawful, that it be done according to law.”

I can’t do justice to this piece here but it does turn out that what is “law” turns out to be an issue reasonable people can disagree about so this theory is broad enough to encompass strong and weak judicial review, varying theories about levels of generality, and even differing views on whether the founding fathers themselves believed in originalism as a theory of interpretation. In fact, according to Professor Sachs, originalism says nothing about interpretation and once again we have left the world of judges and judging.

Ilya Somin made two interesting arguments (in a series of emails to me) on the topic. First, he said that originalists have won an important battle because these days more and more people are jumping on the originalist bandwagon (even if there are good, better, and best applications of the doctrine). I am pretty sure Lawrence Solum of Georgetown, a noted originalist observer but not necessarily an originalist himself, agrees, as does Michael Ramsey who wrote recently that “I think it is a win for originalism that everyone (it almost seems) wants to speak its language and invoke its arguments, even if they do so poorly or implausibly.”

I would venture to say that when academics like Jack Balkin, Randy Barnett, and Steven Calabresi make “implausible” originalist arguments, and when other smart folks drain originalism of most interpretive and normative force, it is a hollow victory for those who believe that originalism means judges should follow the principles embraced by the people who ratified the text that is at issue. If it is possible for people to earn the label "originalist" by identifying broad principles like equality, liberty, fairness, and protection of speech, and then apply apply those vague aspirations according to modern norms to reach results that would have shocked the ratifiers, then they are definitely embracing what Balkin calls "living originalism." I am perfectly okay with that moniker as a description of these folks but I am pretty sure most self-identifying originalists would protest (perhaps too much).

Finally, when I argued to Ilya that under this pick-a-broad-principle-and-apply-modern-norms approach there are no "living Constitution" decisions that can’t be justified on an originalist basis, he responded that Roe and Lawrence and other usual targets of originalists were not written in an originalist manner nor were the authors of those opinions interested in any originalist analysis. Those are interesting points. But, my instinct is that the use of broad principles coupled with selective use of history (which almost always supports both sides, e.g., Heller), does not solve the real problem which is that, as Professor Sachs says, a sincere originalist can embrace virtually any use of those principles--which is exactly why noted liberal William Eskridge and noted conservatives can agree that same sex-marriage bans can be overturned by judges based on “originalism.” Since no one living in 1868 ever thought that could be true, I have no idea what that means other than we are all originalists now or none of us are. The difference won’t matter to the results judges reach (or likely to anyone outside academia) one bit.