Originalism and Same Sex Marriage

"Shag" near the bottom of this thread talks about another blog's discussion of same sex marriage and originalism, the latter an ongoing concern for both authors. Not being as interested in originalism as Shag, summaries like this and five page "nutshells" are more up my speed than some longer works on originalism. But, scholasticism can be interesting, especially when the monks run things.  I use the "s" word advisedly -- use of history, including original understanding or whatever (there are so many threads here) is an aspect of constitutional interpretation.  That's all. 

As Prof. Solum notes: "Different theorists want to draw the line at different places."  Indeed.  There is no real clarity there, even if (and I don't) we rely on originalism as our guide here. The author here is agnostic about the right path on various questions, which is probably a major reason why Shag (an eighty something ex-practicing lawyer who provides insights mixed with spleen and humor at various blogs) appreciates him. Those that rely on history here provide some interesting coverage of various topics such as over fifty pages on what one person thinks about the first section of the Fourteenth Amendment.  Of which someone else will have a different take. Agnosticism at best is a useful trait, especially when reading someone like Justice Thomas selectively looking at history to get where he wants to go. 

Solum also notes the role of social norms on how people and judges in particular will interpret and apply text and so forth. As to social norms, I earlier provided two links to 2003 (Lawrence v. Texas) and 2005 (same sex marriage deemed not yet clearly protected by the Constitution via reasoning I found at the time weak) by Prof. Balkin. Someone who claims to be some sort of originalist (Shag has his own take; I suspect satire), Balkin's view of "due process" itself doesn't only recognize application is "influenced by changes in social norms" but argues that they directly change over time the liberty protected. Rights here develop in part by social recognition such as the right to have sex outside of marriage. Much has changed here even since 2005.  Prof. Balkin therefore is due for an update. Maybe soon.

There is also a discussion on how changing facts can provide an "originalist" take that applies basic rules in a different way given new knowledge.  Changing "facts" also is important here -- the facts on the ground, in our scientific knowledge etc. all affect the rights of same sex couples and GLBTQ individuals. Scalia's question to Ted Olson about "when" same sex marriage became a right comes off as simplistic at best.

Also, there are various reasons offered to why originalism is the best (or least worst) interpretative scheme. They tend to go beyond the "four corners" of the text of the Constitution and provide hidden biases.  Take the idea that it will "constrain."  In the real world, the "constraint" function of originalism has been shown to be dubious. A few cases will be cited, but the same can be applied to those using some other technique. What if the "fixed" text and meaning is not constraining? What if it is not really fixed? What if original understanding requires "due process" etc. to develop over time? If this gives "too much power" to the judges, is it their job to resist it? The policy is set by the document -- it is not their job to resist it, right?

Finally, as to "require" vs. "can be affirmed," the reality is the latter. That is, Prof. Solum argues that we need to determine if the case for same sex marriage has to reasonably "required" by originalism or if it "can" be so affirmed.  Realistically, on a range of complicated questions, there are reasonable grounds here for various conclusions. This is especially the case with changing facts and restraints like precedent or whatever. Also, you have some who don't care much about originalism. So, the determining factor will be those in the middle who need it to be originalist friendly enough to work.  Factoring in the text, overall principles and changing facts, same sex marriage works here as some have pointed out.* The fact Ben Franklin or something would be surprised is not the determinant here.

"Don't know" remains a useful bit of humility.

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* For instance, some have argued that framers of the 14A provided a basic "anti-caste" principle and this applies across the board, including to sex and sexual orientation.  We would then add things like changing facts as to our knowledge of sexual orientation and same sex families. Those who merely quote 19th Century understandings of such things in effect do it wrong.