Originalism and Same Sex Marriage: Part II

In my prior post, I mentioned that I believe there is an originalist case both for constitutionally requiring same sex marriage and for not requiring it.  I briefly mentioned the case for requiring it and then noted that most originalist discussions of the case for not requiring it seemed to rely on original expected applications arguments (which might be thought to be inconsistent with textualist originalism).  Here, I want to briefly set forth the outlines of a textualist case for not requiring same sex marriage.

Let’s assume that the Equal Protection Clause (or possibly the Privileges or Immunities Clause) adopted an equality requirement that prohibited class legislation that singled out a group for special burdens.  Of course, all laws classify and therefore one needs a principle that determines which classifications are constitutional and which not.  It seems that laws that identified irrelevant characteristics of groups, such as race, were deemed to involve arbitrary distinctions that resulted in class legislation.

But it is clear that, although this equality principle prohibited arbitrary distinctions, it allowed laws that drew distinctions based on traditional moral principles.  There are various arguments that support this conclusion.  One views a law that is based on a traditional moral notion as not making an arbitrary distinction.  Another notes that the police power was thought to limit all rights, and this power allowed for regulation to protect the health, safety, welfare, and morals of the people.

At the time of the 14th Amendment, laws prohibiting gay sex as well as those not recognizing same sex marriage would have been justified as necessary to protect the morals of the people.  Today, laws prohibiting polygamy might also be justified on this basis (although some might argue that they would be necessary to protect the equality of the sexes).

Obviously, opinions today about same sex marriage have changed.  While in 1868 virtually everyone would have regarded such marriages as immoral, today the matter is contested, with the country perhaps being split.  Thus, the question is what are the conditions necessary for a traditional moral notion that rendered a distinction nonarbitrary to no longer serve that function – that is, when does a traditional moral notion no longer have the force necessary to justify a classification?

Given this analysis, there are a couple of ways that one might conclude that same sex marriage is not constitutionally required.  First, one might argue that a traditional moral notion can be relied upon to justify a classification until there is a consensus that rejects that moral view.  While the morality of same sex marriage is contested now, the requisite consensus accepting its morality does not exist.  Of course, one can imagine the argument that once a traditional moral notion becomes contested, that is enough to render it no longer capable of justifying a classification.  Or one can imagine the argument that once the traditional moral notion becomes contested, that is enough to allow judges to conclude, based on their own analysis, that that moral notion is insufficient to justify the classification.  But both of these positions seem problematic.  It seems hard to believe that once a matter is contested, that is enough to render relying upon it unconstitutional.  Put more concretely, it seems hard to believe that once prohibitions on gay marriage are contested, then gay marriage must be required throughout the country.

An objection to this analysis is that it fails to acknowledge that sexual orientation is very similar to race.  Under this view, the similarity of sexual orientation to race plus  the contesting of the claim that same sex marriage is immoral is sufficient to deny the traditional moral notion of its force.  This argument might or might not be a reasonable intepretation of the 14th Amendment.  But an interpreter might resist this conclusion by denying that sexual orientation is sufficiently similar to race.  While modern understandings hold that sexual orientation is not a matter of choice (like race), sexual orientation involves a host of differences in behavior  that race does not.  Thus, one might conclude that race and sexual orientation are not sufficiently similar.

In the end, all of this is very tentative.  My point here has been to argue that there are textualist originalist arguments for concluding both  that same sex marriage is constitutionally required and for concluding that it is not.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. David Upham says

    I don’t think your argument is persuasive at all. The text of the Equal Protection Clause admits of NO discrimination whatsoever. Once you distinguish (i.e., discriminate) (1) a person and (2) a person who is within a state’s jurisdiction, the protection of the laws must be equally extended to such persons. The absolute character of what’s required, the limitations on the persons who are to enjoy it (have to be physically president inside the state), indicate the limited character of what’s guarantied–one very important, but only one right to equality: the right to the protection of the laws.

    That this provision says nothing about the ways in which marriage is defined and regulated, is confirmed by the fact that during the pre-Slaughter-House discussions about the relationship between Section 1 and interracial marriage, the Equal Protection Clause was never identified as the basis for such rights (at least I found no such evidence in my study). Rather, where any particular clause was mentioned, it was the Privileges or Immunities Clause. In fact, the Equal Protection Clause was generally opposed by opponents of the Amendment.

    • David Upham says

      One correction–the Clause was NOT opposed by opponents of the Amendment. In fact, I can’t think of an instance where it was singled out as objectionable (tho I suspect there were some objections).

  2. David Upham says

    One other minor point: in the Nineteenth Century, no one alleged that marriage was anything other than a relation of two, and only two, natural persons, who were of the complementary sexes. Therefore, no one said same-sex “marriages” were immoral.

    Of course, it is a different question whether the way in which they defined “marriage” was inconsistent with the ways in which they defined the terms “equal protection” or “privileges or immunities of citizens” or any other constitutional language they were adopting. If, truly, any of those terms, as originally understood, required a redefinition of marriage, then you have an originalist case.

    Does anyone remotely familiar with the history of the Fourteenth Amendment REALLY believe that the express terms of our national compact, as fairly interpreted, compel this redefinition?

  3. Mike Rappaport says

    David, I disagree that this interpretation is not persuasive. Of course, I am not arguing it is correct ,merely that it is reasonable. Michelle Saunders presents evidence that the equal protection clause guarded against laws that drew distinctions without an adequate justification. If that is what equal protection meant, then this meaning is not inconsistent with the text.

  4. David Upham says

    I reviewed Saunders’s text, though not the footnotes. I’m more convinced that Green and Harrison are (for the most part) right.

    At least in the main text, she provides only two real of pre-1870 evidence for the claim that the “equal protection of the law”=”equal laws.”

    In reverse chronological order, they are Howard’s speech. She says that Howard specified the EP Clause in this regard. Not true: he mentioned the Due Process and Equal Protection Clauses together. “The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This 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. It prohibits the hanging of a black man for a crime for which the white man is not to be hanged. It protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man. ”

    Second, she mentions Andrew Jackson’s objection to special laws and his urging that the government stick to the limited function of providing equal protection. But he does not equate EP with immunity from special laws. Rather he treats such special laws are an obnoxious addition to the equal protection that the government should limit itself to: “Distinctions in society will always exist under every just government. Equality of talents, of education, or of wealth can not be produced by human institutions. In the full enjoyment of the gifts of Heaven and the fruits of superior industry, economy, and virtue, every man is equally entitled to protection by law; but when the laws undertake to add to these natural and just advantages artificial distinctions, to grant titles, gratuities, and exclusive privileges, to make the rich richer and the potent more powerful, the humble members of society the farmers, mechanics, and laborers who have neither the time nor the means of securing like favors to themselves, have a right to complain of the injustice of their Government.”

    Outside of governmental deprivations (covered by the DP Clause) and protection of persons, where could they have gotten the anti-caste idea from? See Campbell v. Morris, Corfield v. Coryell, and even Blackstone: citizenship (or subjecthood) entitles an individual to an exemption from special taxes and burdens on property.–the types of special burdens that could rightfully be imposed on aliens.

    The Slaughter-House Cases ruined all that, hence the need, almost immediately felt, to save the purposes of the Amendment by novel interpretations of “equal protection of the laws.”

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