E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Jack
recently highlighted a pair of dueling amicus
briefs in the upcoming marriage equality cases, one filed by the CATO Institute
and one by a number of “Scholars of Originalism,” that raise important
questions about originalism as a form of constitutional interpretation.These
briefs debate whether original meaning or original understanding has pride of
place in constitutional interpretation, what Jack calls “yet another example of
the continuing debates within originalism over who has the best version.”Jack argues that the back and forth in these
briefs, and particularly the agreement that Romer
v. Evans correctly interpreted the Equal Protection Clause, shows that “we
are all living originalists now.”In a
thoughtful, nuanced reply,
Steve Smith, one of the professors who joined the “Scholars of Originalism”
brief, agrees with Jack that “original meaning cannot simply be equated with
‘original expected applications,’” but otherwise resists the pull of Jack’s
view of “living originalism.”
Other amicus briefs filed in the marriage equality cases do a
deeper dive into the text and history of the Fourteenth Amendment, debating
what the history shows.The brief
filed by my organization, the Constitutional Accountability Center, lays out
the original meaning of the Amendment, illustrating that the text, drafting
history, and debates over the Fourteenth Amendment all demonstrate that the constitutional
guarantee of equal protection establishes a broad guarantee of equality
designed to protect all persons from state-sponsored discrimination.(The CATO brief covers some of this ground as
well, though its brief focuses more on the development of equality principles in
antebellum America).Under the text and
original meaning of the Fourteenth Amendment, the Amendment’s guarantee of
equality applies to all gay men and lesbians who wish to exercise their right
to marry the person of their choice.
Three key pieces of evidence show how powerful this view
is.First, in drafting the Amendment, the
Framers specifically rejected narrower equality guarantees that would have proscribed
only racial discrimination in favor of a broad equality guarantee that would protect
all persons.The decision to embrace equality for all was a
conscious choice – made by the Joint Committee on Reconstruction on April 28,
1866 – bringing the Constitution back in line with basic principles of equality
set forth in the Declaration of Independence. It is fitting that the Justices will hear the
marriage equality cases 149 years to the day after the Framers made the
momentous choice to guarantee equal protection for all.
Second, debates in Congress, speeches on the campaign trail,
and editorials published in the press all made clear that the Amendment would
establish equality for all. As our
brief demonstrates, the Framers time and again explained that the equal
protection guarantee “establishes equality under the law,” “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,” putting in the
Constitution “the declaration that all citizens were entitled to equal rights
in the Republic,” and placing all “throughout the land upon the same footing of
equality before the law, in order to prevent unequal legislation.”
Third, racial discrimination against African Americans was
not the only immediate issue of the day.White Unionists in the South faced pervasive discrimination because they
had fought and helped win the Civil War.Immigrants, mainly of Chinese descent, were subject to a barrage of
discriminatory laws in California and elsewhere.The Framers gave the Equal Protection Clause a
broad sweep to prevent these kinds of state-sponsored discrimination and others
that might arise in the future.
In the marriage equality cases, South Carolina, in its amicus briefsupporting the states, takes a radically
different view.It argues that the
Fourteenth Amendment's original meaning was to prevent “racial discrimination
and nothing else” and that “displacement of state marriage laws was the last
thing the framers intended.”To support
this view, South Carolina points to congressional debates in 1866 (some
concerning an earlier version of the Fourteenth Amendment that failed in
Congress, some concerning the Civil Rights Act of 1866), in which a number of
members of Congress recognized the authority of states to deny married women
the same rights that their husbands enjoyed.South Carolina claims that since the Framers of the Fourteenth Amendment
permitted these forms of sex discrimination, they clearly would have also
permitted laws that banned same-sex marriage.
This is bad originalism at its worst – the debates cited by
the state do not concern the equal protection guarantee directly – and it flies
in face of the text of the Fourteenth Amendment ratified by the American people,
which guarantees the equal protection of the laws to all persons, not only to
men.South Carolina finds its friends in
the crowd, while ignoring the mass of evidence, clearly reflected in the text
of the equal protection guarantee, that the Fourteenth Amendment was designed
to secure equality under the law for all persons.
Perhaps that’s why, when Chief Justice Roberts discussed whether
the equal protection guarantee applies to laws that discriminate against women during
his confirmation
hearing, he insisted that the proper approach was to apply the text’s broad
grant of equality under the law as written by the Framers.“[T]hey didn’t write the Equal Protection
Clause in such narrow terms. . . . [T]hey chose to use broader terms, and we
should take them at their word.”As
Roberts emphasized, the Equal Protection Clause is written as a guarantee of
equality for all, not simply as a prohibition on racial discrimination.
When the Justices hear oral argument in the marriage
equality cases later this month, they should remember Roberts’s advice to “take
them at their word.”The Framers made a
conscious decision to write the Fourteenth Amendment as a broad guarantee of
equality for all, preventing majorities in the states from discriminating
against any person or group of persons.It is the Supreme Court’s job to enforce the Constitution’s guarantee of
equality for all.
David Gans is the Director of the Human Rights, Civil Rights and Citizenship Program at the Constitutional Accountability Center and a co-author of CAC's brief in Obergefell v. Hodges. This post is cross-posted at Text and History.