Volokh Conspiracy: Is there an originalist case for a right to same-sex marriage?

My friend and co-blogger Ilya Somin has blogged a few times about the originalist case for a right to same-sex marriage. Reviewing the arguments, he recently concluded: [I]t is no longer possible to claim that there is no serious originalist case for striking down laws banning same-sex marriage. I disagree. It is possible to claim that, and Ill even prove it by making the claim right now: As far as I can tell, there is no serious originalist case for a right to same-sex marriage. Or at least thats what I think so far, based on the arguments that Ilya has provided and linked to in his posts. Ill explain my current thinking here and invite others to show why I am wrong.

Lets start by reviewing the originalist arguments that Ilya has mentioned.

The Calabresi argument. In his essay posted on SSRN, Steven Calabresis primary originalist case for a right to same-sex marriage runs something like this. In U.S. history, it has been common for major political documents, such as the Declaration of Independence, the Articles of Confederation, and many state constitutions, to say that all men are created free and equal. Concerns with freedom and equality generally undergirded legal reforms in the Reconstruction era, including the Reconstruction era constitutional amendments. Laws forbidding same-sex marriage violate principles of freedom and equality, and therefore they violate the Fourteenth Amendment, which of course was one of the Reconstruction-era constitutional amendments.

The Ramsey argument. Michael Ramsey has blogged a tentative originalist case for a right to same-sex marriage. It runs like this: If we assume that an originalist Equal Protection clause establishes an anti-discrimination or equal treatment rule that applies to choices as to who a person can marry, our modern understanding that laws prohibiting same-sex marriage are based on discrimination and inequality can lead to the result that such laws violate the original understanding of the Equal Protection clause.

The Eskridge argument. As Ilya recently noted, William Eskridge has briefly blogged an originalist case, too. According to Eskridge, Justice Kennedys 1996 opinion in Romer v. Evans began by recognizing that an original meaning of the Fourteenth Amendment was to bar caste or class legislation. Laws prohibiting same-sex marriage amount to case or class legislation, so they violate the originalist conception of the Fourteenth Amendment.

The Somin argument. Finally, Ilya has blogged that he thinks laws prohibiting same-sex marriage amount to unconstitutional sex discrimination. In his latest post, he describes this as an originalist argument, linking to this 2013 post which in turn relied on this article by Steven Calabresi and Julia Rickert arguing that sex discrimination was included in that original meaning of the Fourteenth Amendment. With the benefit of modern understanding, we can now see that laws prohibiting same-sex marriage involve sex discrimination, so they are unconstitutional. (Calabresi briefly makes a version of this argument at the end of his recent essay, too.)

The structure of these four arguments appears similar. They each work in two basic steps: (A) assert that the Fourteenth Amendment adopts a broad principle, and then (B) argue that same-sex marriage laws violate that principle. The arguments differ slightly in the nature of the broad principle that they assert the Fourth Amendment recognizes. To Calabresi, the principle is freedom and equality; to Ramsey, its equal treatment in marriage choices; to Eskridge, its rejection of caste legislation; and to Somin, its rejection of sex discrimination.

These are important arguments, but heres where I am stuck: I dont yet see how these are distinctly originalist arguments. My primary problem is at step (A), the articulation of the broad principle. I am not an originalist theoretician, so maybe I am missing something. But I would think that for these arguments to be considered distinctly originalist arguments, at a minimum, the process by which we identify the broad principle that the Fourteenth Amendment adopts has to be based on specific constitutional text as it was understood by the public at the time of its enactment. From what I can tell, the originalist arguments made so far havent really done that. As a result, Im not sure there is anything distinctly originalist about these claims.

Consider Calabresis primary argument about same-sex marriage, which is the most thoroughly developed of the four. Calabresi reasons that important historical political documents talked about freedom and equality, and that these basic concepts were an important influence on the 14th Amendment. So far, that seems hard to dispute. The problem, it seems to me, is that important historical documents talk about a lot of broad principles. And the idea of a general principle having an influence isnt the same as directly adopting a particular conception of that principle. Given that, its not clear which of those broad principles made it into the Constitution. Presumably, not all of them did. To bridge the gap, and to show that the specific principle was adopted at the time, I think we need the originalist step of showing how the specific text was originally publicly understood as recognizing that identified principle.

Without that step, I fear that what are being described as originalist arguments may just be products of the Level of Generality Game with the word originalist tacked on. Most students of constitutional law will be familiar with the Level of Generality Game, as its a common way to argue for counterintuitive outcomes. The basic idea is that any legal rule can be understood as a specific application of a set of broad principles. If you need to argue that a particular practice is unconstitutional, but the text and/or history are against you, the standard move is to raise the level of generality. You say that the text is really a representation of one of the relevant principles, and you then pick a principle at whatever level of abstraction is needed to encompass the position you are advocating. If the text and/or history are really against you, you might need to raise the level of generality a lot, so that you get a super-vague principle like dont be unfair or do good things. But when you play the Level of Generality Game, you can usually get there somehow. If you can raise the level of generality high enough, you can often argue that any text stands for any position you like.

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Volokh Conspiracy: Is there an originalist case for a right to same-sex marriage?