Nov. 5, 2014 -- The “original meaning” of the Constitution’s equal protection clause requires the state to recognize same-sex marriage, and conservatives who rely on “originalism” arguments should accept that fact, a Yale Law School professor maintained in the Houston Law Review’s 19th annual Frankel Lecture.
William Eskridge Jr., the John A. Garver Professor of Jurisprudence at Yale, spoke Oct. 31 at the UH Hilton Hotel and Conference Center before a banquet hall filled with students, faculty, and supporters of the University of Houston Law Center. He was joined in the discussion by Professor Nan Hunter of the Georgetown University Law Center and Professor Jane Schacter of Stanford Law School.
Eskridge noted that there has been a rapid change in the status of marriage equality in the U.S. since 1993, when no state allowed it, to today, when there are potentially 35 states that would allow it under legislation that is pending review by appellate courts. That shift was seemingly “unimaginable” two decades ago, Eskridge said.
“Original meaning theories ask what meaning a constitutional text like the 14th Amendment would have had to a neutral reader of the English language at the time of the framing,” Eskridge explained. “This approach rejects an approach that focuses only on original intent, namely, the subjective expectations of the framers of the text, and how they expected the text to apply at the time to specific issues.”
Eskridge said there were many “excellent reasons” for both supporters and opponents of marriage equality to involve original meaning arguments in the debate.
“I think for supporters of marriage quality, of which I am one, original meaning arguments connect, potentially, traditional American values and American history with the rights of a minority – Lesbian, Gay, Bisexual and Transgender individuals -- and may help bring closure to the marriage equality debate,” he said.
Eskridge said his article on the matter, which will be published in a symposium edition of the Houston Law Review in 2015 ”is an important challenge to advocates of original meaning, which includes a lot of public officials, a lot of federal judges, and those on the Supreme Court.”
“And that is, to be blunt, they need to put up or shut up. Original meaning touts itself as the only approach to constitutional interpretation that is objective – that prevents at least in some cases judges from reading their personal values into the Constitution,” he said.
“Original meaning, if it has any bite at all, has got to find an issue, and this should be it, where someone who is not a big fan of marriage equality nonetheless says, ‘I believe the jurisprudence of the Supreme Court, and the 14th Amendment, and history do persuade me that my views are not constitutionally allowable as state policy,’” he said.
Eskridge traced the history of “Social Contract Theory” from its origins with the British political theorists Thomas Hobbes and John Locke through the framing of the U.S. Constitution and later American history.
He quoted President Andrew Jackson, who in his statement vetoing legislation re-chartering the Second Bank of the United States (which he believed benefited only rich Eastern financiers and not ordinary farmers or working people) wrote, “Every man is equally entitled to protection by law.”
Eskridge also quoted attorney Charles Sumner in an argument before the Massachusetts Supreme Court in the 19th Century case Roberts v. the City of Boston, who wrote of the ordinary citizen, ““He is one of the children of the state, which like an impartial parent, regards all of its offspring with an equal care.”
“And I think that is an enduring challenge to government, whether it is defined in the Constitution or not,” Eskridge said.
He pointed out that before the latter part of the 19th Century, there was no concept of a class of people called “gay” or “homosexual,” noting that the poet Walt Whitman, who he said likely engaged in homosexual conduct, would not have been considered a criminal.
But in the years between 1921 and 1969, Eskridge said, governments at the federal and state levels engaged in an “anti-homosexual terror” by enacting laws that marginalized gays and lesbians. This “terror” was founded on an ideology that depicted homosexuals “as sterile, therefore selfish, therefore predatory, therefore anti-family.”
Beginning with the Romer v. Evans case in 1969, which struck down a broad anti-gay Colorado state constitutional amendment, the U.S. Supreme Court has relied on “original meaning” language in decisions relating to expanding the rights of homosexuals, Eskridge noted. More recently, the court in Lawrence v. Texas in 2003 (which originated in Harris County) struck down the state’s anti-sodomy law.
Eskridge noted that in his dissent in that case, conservative Justice Antonin Scalia “predicted that the unconstitutionality of Texas’ homosexual conduct law logically required the sweeping away of all anti-gay discriminations, including marriage.”
He traced similarities between laws banning gay marriage to the anti-miscegenation laws throughout much of the country, particularly in the South, that the high court overturned in the landmark 1967 case Loving v. Virginia.
“The ideology of anti-miscegenation laws, and this has been documented, was the sexualization of racial minorities as morally or genetically degenerate and predatory. Likewise, the exclusion of lesbian and gay couples from marriage is ideologically rooted in the sexualization of gender and sexual minorities as sterile, selfish, morally degenerate, predatory and anti-family,” Eskridge said.
Georgetown’s Hunter said that the problem she sees with Eskridge’s original meaning framework is that the issue of equal marriage before the Supreme Court is fundamentally political.
“The Court since the decision in Roe v. Wade (affirming the right to abortion in 1972), has been operating almost in reaction to the reaction to that decision,” she said. “That is, at least in part, the hesitancy to extend the logic of prior decisions in the areas of individual rights and liberties has been constructed by the fact that Roe v. Wade thrust the court into the center of partisan politics, which is not a place where the court should be, nor is it a place where the justices feel comfortable.”
The real question, she said, is “whether we can put this Humpty Dumpty of how to properly interpret equal protection theory back together again.”
Hunter said Eskridge’s thesis points to “an enduring puzzle in constitutionalism: How unchanging text most legitimately can accommodate various forms of change, especially changes in social meanings and moral valence of certain behaviors. There’s certainly no more contentious example of that than same-sex marriage.”
Schacter, the William Nelson Cromwell Professor of Law at Stanford, said the debate over same-sex marriage “has been profoundly shaped by time.”
Not only has public opinion in the U.S. shown rapid acceptance of same-sex marriage over the past two decades, politicians (including President Barack Obama before he announced his support in a televised interview) have talked profusely about how they are “evolving” on the issue, Schacter said.
“It sounds not unlike some of the well-worn debates between originalism and living constitutionalism,” she said.
“Professor Eskridge energetically proposes to upend the structure of this debate, emphatically resisting the idea that originalism in the context of marriage belongs only to the opponents of same-sex ranks,” she said.
“The issue seems to cry out for analysis not so much of history, but of how the dynamics of recent and rapid change of this sort connect to the enterprise of constitutional law,” she said.
Schacter said that the concept of “popular constitutionalism” – which posits that constitutional legitimacy flows not from original meaning, but from support in current popular views about what the Constitution means and protects – might provide a descriptive model for the debate.
“In the early years of the marriage debate, there was a palpable incredulity about the very idea of same-sex marriage. The LGBT side framed this in terms of constitutional rights. It took a long time for that to have any traction. A lot of people thought it was wacky,” she said.
“Over time, as attitudes changed, it became more plausible to say that a right of marriage equality falls within the broad terms of the equal protection clause and the due process clause,” she said.
Schacter said she sees “a golden opportunity” for proponents of marriage equality, but one that is different from the one Eskridge sees.
“The opportunity I see is to use the palpable dynamics of change on marriage and LGBT equality to emphasize, without apology, how open the textured phrases of the 14th Amendment – equal protection under the law and due process of the law – are and must be, given changing meaning over time,” she said.
The Frankel Lecture, presented by the Houston Law Review, is an annual event made possible through funding provided by the Frankel Family Foundation. Click here to view the Houston Law Review’s 19th annual Frankel Lecture.