How Same-Sex Marriage Overcomes the Originalism Argument

Because this is the era of LGBT constitutional rights, let’s talk about the arguments for and against finding a right to same-sex marriage in the 14th Amendment of the Constitution.

We’ll kick things off with the originalism argument, which goes something like this: “Those who drafted and voted to adopt the 14th Amendment in 1868 could not possibly have believed that they were creating a right to same-sex marriage, and since the words of the 14th Amendment haven’t changed, it’s meaning could not have changed in the past 150 years.” I explained this argument more comprehensively here.

There’s a problem with that argument: The Supreme Court has already decided that the outcome of a case that hinges on the language of the 14th Amendment can change.

In 1868, many of those drafting and voting on the 14th Amendment did not believe that it would require the integration of public schools.1 SCOTUS initially concurred in Plessy v. Ferguson. But in 1954, the Court changed its mind, even though the words of the 14th Amendment had remained the same. Importantly, SCOTUS did not say that the meaning of the 14th Amendment had changed. Instead, in Brown v. Board of Education, the Court explained that school segregation had always violated the 14th Amendment, but the Court just hadn’t realized it. The Court said that the social science illustrating the damaging effects of segregation on kids was not sufficiently developed prior to 1954 to demonstrate that “separate is inherently unequal.” In other words, the 14th Amendment always meant the same thing, but the American people (including the Supreme Court Justices) learned something in the interim, and that more advanced knowledge changed the practical outcome of the case.

Essentially the same thing happened regarding interracial marriage. There is evidence that the drafters of the 14th Amendment actively avoided language that would create a right to interracial marriage.2 Yet, SCOTUS held that the 14th Amendment created just such a right in Loving v. Virginia in 1967. The Court shrugged off an argument that the framers of the Amendment avoided creating a right to interracial marriage, and looked at the general purpose of the amendment. That is, “the clear and central purpose [of the 14th Amendment] was to eliminate all official state sources of invidious racial discrimination.” Based on that broad purpose, the Court reasoned that the 14th Amendment created a right to interracial marriage.

It’s very unlikely that those who drafted and adopted the 14th Amendment believed that they were barring states from adopting laws banning homosexual sex. But SCOTUS held just that in Lawrence v. Texas (in which current swing-Justice Kennedy wrote the majority opinion in 2003). Once again, SCOTUS explained that the meaning of the 14th Amendment hadn’t necessarily changed. We, as Americans, had just learned, as a people, that there is really no justification for laws banning homosexual sex aside from animus against homosexuals, and animus alone is not a valid justification for a law.

So, it may be true that (from a judicial interpretation perspective) the meaning of the 14th Amendment does not change, but as a practical matter, that proposition does not carry as much weight as some attribute to it. On multiple occasions, SCOTUS has held that the result of a case is now different than the framers would have expected in 1868 because we as Americans had learned something important in the interim.

So what have we as Americans learned about same-sex marriage since 1868? That one’s easy. We’ve learned that sexual orientation is not a choice.3 That makes it an immutable characteristic, which is important in determining whether courts should examine laws discriminating based on sexual orientation with heightened scrutiny (as is the case for laws discriminating based on race and sex).

It does matter that those who drafted and adopted the 14th Amendment probably did not believe that they were creating a right to same-sex marriage. SCOTUS can’t arbitrarily decide that the Constitution means something different now than it used to. Doing so would allow (unelected) judges to essentially create laws themselves and in a largely unaccountable way, since they have life tenure. So, if the 14th Amendment did not create a right to same-sex marriage in 1868, it probably shouldn’t protect such a right now.

But that argument certainly is not determinative. We, as Americans, have developed a more thorough understanding of sexual identity and orientation in a material way. The Supreme Court has previously held that the practical outcome of cases under the Constitution can change in light of society’s evolving understanding of the underlying issues. SCOTUS can absolutely take that more thorough understanding into account when it decides whether the the 14th Amendment contains a right to same-sex marriage.

Footnotes:

1. Andrew Kull, The Color-Blind Constitution, Harvard University Press, Cambridge 1992.
2. Id.
3. See, e.g., Brief of the American Psychological Association as Amicus in Windsor case.

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