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Originalists and the 14th Amendment

Community/Meta Prop 8 trial

By Jacob Combs

David Gans and Doug Kendall of the Constitutional Accountability Center have an article this week in Slate examining a new school of thought in conservative jurisprudence regarding the 14th Amendment’s guarantee of equal protection.  Featured in their piece is a law review article written by Stephen Calabresi, co-founder and board chair of the Federalist Society, and Julia T. Ricker arguing that the original text of the Constitution protects women from sex discrimination.  Their argument, essentially, is that the 14th Amendment’s ultimate intention in abolishing slavery was to forbid the subordination of any citizen based on their individual characteristics.  As Gans and Kendall write:

Calabresi thus convincingly demonstrates that the full sweep of our constitutional history—the principle stated in the Declaration of Independence, perfected in the text of the Equal Protection Clause, and then further illuminated in the 19th and other amendments—supports a broad reading of the Constitution’s command of equality.

Furthermore, they argue that this new way of thinking may be persuading originalists on the Supreme Court, including Antonin Scalia, to reexamine their narrow interpretations of the 14th Amendment, and could even affect the way they rule on equal protection cases, such as Perry v. Brown.

But as Towleroad’s Ari Ezra Waldman argues, it’s too early for marriage equality supporters to plan for an easy victory at the Supreme Court.  In particular, Waldman notes that textualism and originalism have been used for many years by conservatives who advocate for a minimalist federal government.  Second, the Nineteenth Amendment, which gave women the right to vote and explicitly prohibited sex discrimination in voting, supports an originalist view prohibiting sex discrimination.  Gays and lesbians do not have a corresponding amendment to point to as we push for equality.  This distinction, Waldman points out, is essential:

Keep in mind that this interpretive regime and the relevance of the Nineteenth Amendment for a broad reading of the Fourteenth Amendment is salient for textualists and originalists. I am under no such burden. I have no problem accepting the applicability of the Equal Protection Clause to sexual orientation discrimination, and just because Justice Scalia believes that the clause bans sex discrimination does not mean he is on board with the view that the clause also bans sexual orientation discrimination. For a textualist, the journey is much harder.

Of course, there are only nine men and women who have any idea what the justices of the Supreme Court may think when (or if) the Perry appeal makes its way to the high court.  Its tempting to assume the votes will fall in an ideological 5-4 split, with Justice Kennedy making the ultimate decision, but the reality could be quite different.  For now, though, as Waldman says, let’s not count our justices until they’ve voted.


  • 1. Sagesse  |  December 14, 2011 at 5:37 pm


  • 2. truthspew  |  December 14, 2011 at 7:36 pm

    You leave out the statistical likelihood that a minimum of two USSC justices will either die or retire during Obama's second term.

    If I had to call it, Thomas is one on the dead list. Scalia too. Neither is very healthy. Just replacing those two could tilt the court back to the left.

  • 3. Steven  |  December 14, 2011 at 9:08 pm

    Hey guys, Please don't bash some justices and wishing they will die while serving on the court. it looks bad upon us.. Are the other side thinking and hoping some liberal justices will die? no.. Think positive about this case. We are so winning so far…

  • 4. Tyler  |  December 14, 2011 at 9:14 pm

    I'm not sure why that article is getting so much play. Calabresi is principled, he is conservative, and he did found the Federalist Society, but he is considerably more open to non-traditional outcomes in originalism (that doesn't mean they're wrong outcomes, but it does mean that they're somewhat novel and certainly not consonant with the conservative movement's interpretation of originalism). None of the four truly conservative Justices are going to buy it. There's not a chance in the world that we get Thomas's, Alito's, or Scalia's vote. I think there might be a 1%-5% chance that we get Roberts's vote, because he'd probably rather be viewed historically in a positive light. Anyway, I think it's one of the safer bets you can make that the ultimate decision will be 5-4.

  • 5. Bill S.  |  December 15, 2011 at 1:26 am

    It's worth noting that Roberts provided pro-bono legal services in Romer v. Evans (in favor of the pro-gay side).

  • 6. Doug Kendall  |  December 15, 2011 at 8:17 am

    Thanks very much, Jacob, for this discussion of the Slate article written by David Gans and myself. I just wanted to clarify, particularly in response to Mr. Waldman's piece, that we are under absolutely no delusion that Justice Scalia will change his mind about the Equal Protection Clause and the protection of gay men and lesbians. You cannot read his vitriolic opinions in this area and think that. Our point, rather, is that the ground is shifting under Justice Scalia, with conservative originalists like Professor Calabresi taking the position that the EPC protects women against discrimination on the basis of gender (something many conservative originalists, including Justice Scalia, have long denied). While Justice Scalia seemed to recognize this history in his recent Senate testamony, it would be shocking if this caused Justice Scalia to change his mind if Perry gets to the Court. What it does, instead, is undercut his position and strenthen the arguments being made by Perry supporters to moderate conservatives, such as Justice Kennedy, who everyone suspects will be the deciding vote if the Court takes Perry. Hope that clarifies things and thanks again for this discussion.

  • 7. be4marriage  |  December 15, 2011 at 8:28 am

    He also rejected the court challenge – singlehandedly – against marriage equality in DC.

  • 8. James Sweet  |  December 15, 2011 at 8:42 am

    Furthermore, they argue that this new way of thinking may be persuading originalists on the Supreme Court, including Antonin Scalia, to reexamine their narrow interpretations of the 14th Amendment, and could even affect the way they rule on equal protection cases, such as Perry v. Brown.

    Um. Listen. I will bet you any amount of money you want, I will bet my house, my car, my entire life savings, the clothes off my children's backs, that, assuming the SCOTUS make a ruling in Perry, Scalia will vote against marriage equality.

    The bet is off if Scalia suffers some kind of neurological incident like a stroke or something that can radically alter a person's behavior. Barring that, to even think Scalia might vote the right way on this one is borderline delusional. Sorry to be a fly in the ointment.

  • 9. James Sweet  |  December 15, 2011 at 8:45 am

    Tyler is exactly right here. I'd put Roberts at closer to 1% than 5%, but it's not entirely unimaginable. The other three conservative justices, the odds are as close to 0% as is possible when talking about these sorts of things.

    It will be a 5-4 decision, and it could go either way.

  • 10. thark  |  December 15, 2011 at 8:54 am

    Steven you know for SURE the demons on the other side wish the liberal EVERYONE would die. (don't you ever see those GOP rally posters…?)

    They certainly leave no doubt as to how rabid the right has become.

    But…uh…I suppose we know what you mean…

    (rolled eyes, in some ways…)

  • 11. thark  |  December 15, 2011 at 9:00 am

    Scalis an Thomas have BOTH written extensively antigay articles and have gone on record repeatedly as being faithful to a "religious leader" who is now taking the unprecedented step of authorizing huge sums of money to defeat any civil attempt to treat gay people more equally under the law.

    We're talking about two "justices" (rolled eyes) who are constantly swearing their allegiance to Pope Nazius the 1st and his campaign to "get the gays" (again), in order to preserve the salvation of his congregation (or some such gobble-dee-gook) and protect the world from "the destruction of marriage as we know it".

    The souls of two VERY catholic "justices"…in a perilous balance between good and evil, as they see it…?


    (turns that so-called 5-4 ruling right on its head doesn't…MUWAHAHAHahahahahahaaa….)

  • 12. thark  |  December 15, 2011 at 9:05 am

    The constitution protects what it was designed to protect.

    That unanimous ruling in Iowa was no accident.

    The Antigays gut themselves every time they invite scrutiny.

    History has and will bear this out.

  • 13. Jordan  |  December 15, 2011 at 10:12 am

    As for the health of the justices and wishes of health on them, I’d like to point that both sides have said some pretty dispicable things. I want to believe that NOM’s advocated praying for the deaths of judges, but I don’t remember which faction it was- just that it was anti-gay. Either way, it’s wrong. Wanted to throw that in there, though. Where there is a thought, there will be an raging, idiot troll to make bane on it.

  • 14. Fluffyskunk  |  December 15, 2011 at 6:28 pm

    What second term?

  • 15. TomTallis  |  December 15, 2011 at 9:01 pm

    Do you think the court WILL take Perry? It seems to me that the 9th circuit will rule narrowly in a way that only applies to California and the SCOTUS will breath a sigh of relief and deny cert.

  • 16. Sam  |  December 16, 2011 at 8:43 am

    Wait, seriously? Where do you know that from?

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