Originalism and Same Sex Marriage

27 Pages Posted: 14 Oct 2014 Last revised: 25 Feb 2015

Date Written: October 13, 2014


This essay examines the original meaning of the equality guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudalism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it concludes that State laws banning same sex marriage violate the Fourteenth Amendment.

Keywords: Gay rights, Constitutional law, Fourteenth Amendment, Marriage law, Right to Privacy, Equal Protection Doctrine

JEL Classification: K10, K19

Suggested Citation

Calabresi, Steven G. and Begley, Hannah, Originalism and Same Sex Marriage (October 13, 2014). Northwestern Public Law Research Paper No. 14-51, Available at SSRN: https://ssrn.com/abstract=2509443 or http://dx.doi.org/10.2139/ssrn.2509443

Steven G. Calabresi (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

Hannah Begley

Stanford University, School of Law, Students ( email )

Stanford, CA
United States

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