Originalism and Same-Sex Marriage
University of Pennsylvania Journal of Law and Social Change, Vol. 17.1, Forthcoming
43 Pages Posted: 28 Mar 2013 Last revised: 7 Dec 2017
Date Written: February 15, 2013
Supreme Court Justice Antonin Scalia has repeatedly asserted that same-sex marriage is an easy question for originalism; it is clearly not within the Constitution’s purview. The purpose of this Article is to challenge that claim by illustrating how an originalist could find that denying same-sex marriage contravenes the original public meaning of the Fourteenth Amendment. It seeks first to ascertain the original public meaning of Section One of the Fourteenth Amendment. The Article finds that Section One may serve as a prohibition on systems of caste and class legislation or alternatively as a ban on partial or special class legislation that singles out a group for a particular benefit or burden. As to the former, it explores the scientific research on the psychobiological roots of homosexuality, the historical treatment of homosexuals under American law, and present areas of legal inequality of homosexual relative to married heterosexual couples. It seeks to establish that a system of caste likely does exist, and that an originalist may find denying same-sex marriage to be an unconstitutional perpetuation of that system. As to the latter, if the original public meaning of the Amendment is to constitutionalize the antebellum practice of prohibiting laws which single a group out for a special burden, it argues that an originalist may find denying same-sex marriage to be an unconstitutionally targeted burden. The aim of this Article is not to impose upon originalism a definitive answer to the same-sex marriage question, but rather to illustrate how an originalist could legitimately find denying same-sex marriage to be unconstitutional. At the least, the Article demonstrates that same-sex marriage demands of originalism deep consideration and is not the easy question Justice Scalia believes.
Keywords: Originalism, Same-Sex, Marriage, Civil Rights, Fourteenth Amendment, Proposition 8, Windsor v. United States
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