Civil and Human Rights

A Brilliant Originalist Argument for Marriage Equality

By Mark Joseph Stern


In a recent article mocking South Carolina’s startling amicus brief in opposition to marriage equality, I noted that anti-gay discrimination, like sex discrimination, probably isn’t forbidden under an originalist reading of the 14th Amendment. This concession prompted a politely irritated email from the Constitutional Accountability Center’s Doug Pennington, who directed me toward his organization’s own amicus brief in the gay marriage cases. The CAC also analyzes marriage equality through an originalist lens. But its attorneys assert that an originalist understanding of the 14th Amendment actually mandates nationwide marriage equality.


The CAC’s primary argument echoes one famously made by conservative law professor Steve Calabresi: that the 14th Amendment’s equal protection clause bars class-based discrimination. This idea was most famously articulated in Justice John Marshall Harlan’s Plessy v. Ferguson dissent, which declared that the Constitution “neither knows nor tolerates classes among its citizens.” The premise here is simple: If nothing else, the “equal protection of the laws” guarantees that the majority cannot pass laws that degrade or demean a minority group on account of its identity. Such legislation would create, in Harlan’s words, a “caste”—exactly the kind of legal inequality the 14th Amendment was designed to obliterate.


This is a very humane and civilized proposition. But is it correct in originalist terms? Justices Antonin Scalia and Clarence Thomas, the court’s leading originalists, don’t think so. Neither does South Carolina, which plucks out sexist, closed-minded quotes from the 1866 ratification debate to prove the 14th Amendment outlawed only racial discrimination.


But Calabresi and the CAC dig deeper into the historical record—and discover that many of the measure’s drafters and ratifiers had far grander plans for their amendment. Sen. Jacob Howard, a member of the committee tasked with drafting the amendment, declared that it “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.” Rep. Giles Hotchkiss, another member of this committee, said that the point of the amendment was “to provide that no State shall discriminate between its citizens and give one class of citizens greater rights than it confers upon another.” And Sen. Timothy Howe explained that the amendment was designed to “protect classes against class legislation.” All these men were quite explicit in their belief that the 14th Amendment would protect all people, not just racial minorities. 


Perhaps most illuminating, however, is a Republican National Party bulletin widely read by the state legislators who were tasked with ratifying the amendment drafted by Congress. According to this bulletin, “Republicans in Congress tried to the extent of their powers to abolish throughout the bounds of the republic the evils of caste, as second only to those of slavery.” When Congress sent their measure to the states for ratification, then, they made clear to legislatures that this new amendment wouldn’t just remedy the “evils” of slavery; it was also forbid class-based legislation which would create a “caste” that valued some people’s rights over others’.


Laws that outlaw marriage equality, of course, exemplify class-based legislation: By outlawing same-sex marriage, the government has targeted a class of people and disadvantaged them based on their identity. South Carolina is correct that the 14th Amendment’s framers didn’t foresee the equal protection clause’s application to gay people. But it’s not really accurate to say that these men didn’t intend their amendment to apply to new minorities. Few legislators in 1866 could have predicted the emergence of gays (or, for that matter, women) as fully participating members of society—as citizens, in a word. Luckily for us, they intentionally wrote an amendment that spoke in extremely broad terms that, by their plain text, protect classes today who were barely recognized as people 150 years ago. That, at least, is the originalist theory in support of marriage equality—one that makes South Carolina’s cherry-picked history lesson look an awful lot like pretext for bigotry.

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