When the Supreme Court decided the Obamacare case, it shed light on one of the most significant constitutional questions in American history: how broad is the power of the federal government when it comes to regulating economic activity? As significant as that question is, the Court is now considering an even more fundamental question: how should the Constitution be interpreted, in light of what the founders believed the words meant, or in light of the socially and culturally accepted meaning of the words today?
The cases at issue, of course, are the same sex marriage cases that the Court will decide by June 2013. The critical constitutional provision is the Fourteenth Amendment, adopted in 1868, three years after the conclusion of the Civil War.
It is probably safe to say that if we could travel back in time and poll the drafters of the Fourteenth Amendment, a near unanimous majority would agree that the amendment did not guarantee a right to same sex marriage. So, those who believe that the Constitution does guarantee such a right must be able to explain how that right exists if the very people who wrote the text would disagree.
The most common answer to this conundrum is that the Constitution was meant to be a living document. It was meant to evolve with society. As evidence of this theory, its adherents point to the fact that some of the founders did not even believe that the Supreme Court would have the power to hold laws unconstitutional. But that concept is nearly universally accepted now. Thus, even in its first few decades of existence, the Constitution evolved.
An Originalist, such as Justice Scalia, who believes that the Constitution should be interpreted according to the intent of those who drafted it, would disagree with the above argument. In response, Scalia might argue that allowing judges to interpret provisions of the Constitution in ways that differ from the intent of those who drafted it strips the document of all meaning. What good is a law if it can mean one thing one day and the opposite another day? If that is what is happening, aren’t we allowing public opinion to dictate what the Constitution means? But isn’t the very purpose of the Constitution to protect the rights of minorities from the will of the majority? If we are going to allow public opinion to influence the meaning of the Constitution, why not just let public opinion dictate law directly through the democratic process?
So, what does the Constitution say about same sex marriage? It depends how one interprets the following text from the Fourteenth Amendment:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The people who voted to adopt that text in 1868 almost certainly did not believe that it guaranteed a right to same sex marriage. But if that language guarantees a right to interracial marriage and a right to use contraceptives (which the Supreme Court has held that it does), it seems that it could quite reasonably be interpreted to guarantee a right to same sex marriage.
The question is far too complex for me to resolve in this space. But the debate described above will be central to the arguments made in the legal briefs, oral arguments and the Supreme Court’s opinion itself, links to each of which will be posted in this space when they are released.
UPDATE: Further reading can be found here.