How Supreme Court conservatives could support gay marriage: A modest proposal

November 12, 2012: 7:18 AM ET

The court has tied itself up in intellectual knots that could make it hard to support gay rights. But there is a way even the most conservative members could come around.

By Roger Parloff, senior editor

FORTUNE -- This term, and possibly this month, the U.S. Supreme Court is expected to take up at least one gay-rights case of historic significance. The Court could select one of the eight cases now challenging the constitutionality of the federal Defense of Marriage Act, or it might hear Hollingsworth v. Perry, where the opposing gladiators of Bush v. Gore—Ted Olson and David Boies—have joined forces in an effort to strike down California's Proposition 8, a ballot initiative intended to ban gay marriage.

Although all these cases differ in important ways, there's a common thread linking them all: Is the doctrine known as "originalism" the most sensible way to interpret the Constitution?

In its current, prevailing formulation, that doctrine dictates that the text of the Constitution should be given the objective meaning that it would have had to a reasonably well-informed member of the public at the time of its enactment. (Led by Justice Antonin Scalia, adherents of originalism have largely discarded earlier formulations, which once focused on either the "original intent" of the drafters or the "original understanding" of the ratifiers, due to acknowledged difficulties with divining the subjective mental states of scores of diverse individuals who died a long time ago.)

Originalism is problematic for gay-rights advocates because, in 1868, when the Equal Protection Clause of the Fourteenth Amendment became law, consensual homosexual acts were considered felonies in 32 of 37 states. It is therefore unlikely that the average American in 1868—including most of the state legislators who voted to ratify that amendment—would have understood the words "equal protection of the laws" to include a right to engage in what was then thought of as the crime of "sodomy."

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As championed by President Ronald Reagan's first attorney general, Edwin Meese, and then refined by Justice Scalia, originalism has proven extraordinarily influential in this country. It is not unusual today for both the majority and dissenting justices in a constitutional case to at least make a stab at reconciling their rulings with originalist theory.

But it is as a political force that the doctrine has proven most triumphant. While the Tea Party is its most overt political manifestation, originalism's appeal among nonlawyers is much broader than that—and for weighty reasons. When compared to other theories of constitutional construction, it's the only one that sounds remotely objective. Almost any other theory delegates to the justices the power to interpret broadly worded constitutional principles—like "equal protection," "due process," or "cruel and unusual punishment"—in light of contemporary circumstances, mores, and values. Such theories—known collectively under the rubric of "living constitutionalism"—permit justices to take into account fuzzy, malleable notions like "evolving standards of decency," and they openly acknowledge that a given Constitutional text should, in some instances, be applied differently in 2012 than it would have been in 1868, or in 1791, or in 1789, or whenever the particular clause being construed took effect.

For many Americans, the "living" approaches sound too loosey-goosey, too soft-headed, too apt to give elitist justices the power to cram their effete values down regular folks' throats. Nobody wants unelected judges just winging it each time they interpret the Constitution, and who can blame them.

At the same time, when we look back on the country's history it's hard not to conclude that squishy terms like "evolving standards of decency" do have some ascertainable meaning. Who can look back at the remarkable, steady, bipartisan progress that the gay-rights movement has achieved in this country since the 1960s—in an era of otherwise relentlessly ascendant conservativism—without acknowledging that some rare transformations in our society's values are both palpable and discernible. In fact, when baby-boomers like me force ourselves to recall, often with great pain, the marked shifts in our own attitudes toward homosexuality over the past five decades, there's just no doubting it. We know first-hand the disorienting, "in-my-own-lifetime" wonderment that our parents' and grandparents' generations told us about feeling during the nation's marches toward racial and gender equality.

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When weighing the advantage of originalism's purported objectivity against the disadvantage of its self-inflicted blindness to contemporary reality, it's worth observing that the doctrine also has another disconcertingly singular feature. Alone among the scores of theories of constitutional interpretation that have been propounded over the past 200 years, the relatively arriviste doctrine of originalism actually enjoys far wider acceptance among nonlawyers than it does among lawyers.

Look at today's extremely conservative Supreme Court, for instance—maybe now the most conservative judicial panel in the nation. Notwithstanding their respectful bows and nods in the direction of originalism, only two of its nine justices (Scalia and Clarence Thomas) actually identify themselves as originalists, and one of those (Scalia) admits that he's a "faint-hearted" one, conceding that he sometimes departs from the doctrine to avoid unworkable, disruptive outcomes. As he has famously put it, "I'm an originalist, not a nut."

When it comes to law schools, the scarcity of originalists is even more striking. Many schools—probably most—don't have a single orthodox originalist on their faculty, as Scalia himself recognized in a 2007 foreword to professor Steven Calabresi's book, Originalism.

Why might it be, then, that lawyers—including conservative lawyers—are so much less enchanted with originalism than nonlawyers are? Maybe it has something to do with the fact that lawyers have to read a lot of constitutional cases in law school. In the process many seem to conclude that when it comes to the actual nitty-gritty questions posed by most contemporary constitutional disputes—like, say, whether a state can require a particular regimen of handgun registration or ban the sale of extended-capacity ammunition magazines for assault-style weapons—originalism gives no decisive guidance. Plausible originalist arguments can be marshalled in each direction. And even when originalism does tilt in a certain direction, it may counsel bizarre results. Many scholars maintain, for instance, that, viewed under an originalist lens, the Constitution confers no power on the federal government to print paper money.

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Another weird, open secret that most lawyers know, but that many nonlawyers don't, is that, from an originalist perspective, applying "equal protection" to blacks and women can be just as challenging as applying it to homosexuals. (The arguments that follow are drawn heavily from the writings and speeches of Yale Law School professors Robert Post, Reva Siegel, and Jack Balkin, especially Balkin's breathtakingly persuasive 2011 book, Living Originalism.)

The Congress which drafted the Fourteenth Amendment in 1866 made no attempt to dismantle the segregated school system that it had set up in the District of Columbia just four years earlier and, on the contrary, kept appropriating money to that system until 1954. When the states ratified the Fourteenth amendment in 1868, public sentiment was overwhelmingly hostile to the idea of blacks and whites attending the same schools. Apparently "equal protection," as the term was understood at the time, was consistent with segregated school systems. (Similarly, in 1868, women couldn't vote or, in most states, serve on juries, and their property automatically became their husbands' upon marriage. It did not occur to most contemporaries that "equal protection of the laws" required upsetting any of those entrenched practices.)

So when originalist doctrine was first gestating in the minds of conservative law professors and politicians in the 1970s and 1980s, it was widely accepted that, if one adopted an originalist view, Brown v. Board of Education was wrongly decided. Across the political spectrum all the greatest legal scholars of the era were of one mind about that, including Alexander Bickel, Raoul Berger, Walter Burns, Ronald Dworkin, Richard Posner, and Laurence Tribe.

At first, the fact that originalism couldn't generate the correct result in Brown didn't pose a problem for the doctrine's champions. Originalists could accept an interpretive theory that would have left apartheid America in place—not because they were racists or segregationists, but because they thought a societal change as radical as permitting blacks to attend the same public schools as whites should be brought about by democratic votes in the various state legislatures, and not by nationwide judicial fiat. (It's exactly how conservatives feel today about recognizing a constitutional right to same-sex unions or marriage.)

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As time passed, though, the inability of originalism to generate the correct result in Brown became a great embarrassment to the doctrine's adherents. They emphasized that they weren't by any means advocating Brown's reversal. Of course it should be followed, they acknowledged, but under the principle of stare decisis—deference to precedent.

Yet as more time passed, this apologetic, backdoor way of endorsing what had come to be seen as the greatest ruling of the Twentieth Century wasn't cutting it. As Balkin writes in his book, "No interpretive theory that regards equal constitutional rights for [blacks or] women as an unfortunate blunder that we are now simply stuck with because of respect for precedent can be adequate to our history as a people."

Finally in 1995—more than 40 years after Brown was decided—a conservative law professor named Michael McConnell, then of the University of Chicago and now at Stanford, came up with an ingenious, scholarly, almost plausible, originalist argument for reaching the, by then, universally desired result in Brown. It had to do with the fact that from 1872 to 1875, there had actually been an attempt in Congress to pass legislation to desegregate the nation's schools, and it had been spearheaded by many of the same Radical Republicans in Congress who drafted the Fourteenth Amendment. That their legislative effort failed, and the American public tossed those radicals out of office in the 1874 elections by a landslide, McConnell did not consider fatal to his thesis. In a 90,000-word, 887-footnote law review article, he laid out a tortuous path by which a self-respecting originalist could have theoretically reached the same result that the Warren Court justices unanimously reached four decades earlier, albeit using their sentimental, fuddy-duddy liberal theories about construing a living Constitution.

It was a tour de force, although it left some readers marveling more at the fact that such an argument had to be so belatedly and laboriously constructed, than at the persuasiveness of the argument itself.

It has also suggested, to me, a modest proposal for how the originalists now on the Supreme Court could recognize and affirm gay rights today. Though they may not be able to see just yet the originalist argument justifying such a ruling, it's a foregone conclusion that in the decades ahead, as society continues to evolve and originalists become increasingly ashamed that their doctrine of constitutional interpretation cannot embrace gay rights, a gifted conservative scholar will eventually step forward and discover an originalist course of reasoning that leads, however sinuously, to that conclusion.

In the current Supreme Court term, then, why shouldn't the originalist justices just go ahead and join their more liberal colleagues in affirming gay rights? They can simply sign a concurring opinion that will be left blank for now. It should be filled in at a later date, they can specify, when the appropriate originalist argument makes itself retrospectively manifest.

Alternatively, the full Court could recognize that the meaning of broadly worded, open-ended, constitutional principles like "equal protection" evolves as our society does, and that—with or without the conscious acquiescence of originalists—our Constitution lives after all.

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