December 14, 2011
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.