More on Originalism and Same Sex Marriage: A Response to Mike Ramsey

My position on the constitutional question of whether gay marriage is required is that there are reasonable interpretations on both sides of this issue.  One danger of such a position is that it puts one in a no win position, but – hey – you have to go where the evidence leads you.  Mike Ramsey (with arguments I mainly agree with) has been responding to critics of the argument that the 14th Amendment does require same sex marriage.  Here I want to respond to Mike’s criticisms of the arguments that I offered for why one might conclude that same sex marriage is not required.

Mike focused on one small part of my post addressing the issue whether sexual orientation is like race.  Rather than get into this issue – perhaps I will in the future – I want to note that Mike fails to address the basic question as to how we identify what moral rules are sufficient for justifying the law drawing a distinction under the 14th Amendment.  This is a potentially independent reason for not requiring gay marriage.  I had noted that at the time of the Amendment traditional moral rules would have been deemed to be a sufficient basis for a law to draw a distinction.  (Under one theory, a law that drew a distinction based on traditional morality would not be seen as class legislation.)

One response that Mike appears to make is that there were moral objections to interracial behavior.  Mike writes: “But many laws that discriminated on the basis of race involved behavior that people at the time thought was immoral.  For example, consider the various rules that prevented blacks and whites from associating in public.”  Thus, he seems to suggest that relying on traditional morality proves too much, since it seems to allow laws that discriminate based on race.

But Mike’s argument does not indicate that traditional moral principles could not serve as a constitutional basis for drawing distinctions.  One way to read the 14th Amendment is that it treated racial distinctions as extremely problematic – as paradigmatic instances of arbitrary laws – but left other distinctions to be determined by more general principles.  Put differently, racial distinctions were core cases of class legislation, but other distinctions were not.  In that event, one needs a method of determining what moral distinctions were permissible.  Allowing traditional moral distinctions  has much to be said for it as an interpretation of what the 14th Amendment allowed.

One might wonder what justifies treating racial distinctions that some might regard as justified by traditional morality differently than other aspects of traditional morality.  But, first, it is not clear that traditional morality generally, as opposed to morality in some areas of the country, approved general racial distinctions.  Second, it is not uncommon for people to use a term such as equality in the manner described – as adopting a principle (prohibiting class legislation and allowing traditional morality to stand as showing that something is not class legislation) while at the same time treating a core case as being prohibited under that principle (race discrimination is prohibited, even though some regard it as traditional morality).

I said at the beginning of this post, I think there are reasonable arguments on both sides of this issue.  So I am disagreeing with Mike not because I believe his argument in favor same sex marriage is wrong, but because he seems to claim that the argument against same sex marriage is unreasonable.

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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