Two of the leading proponents of originalism--Antonin Scalia and Clarence Thomas--were dissenters in Obergefell; and so, as Eskridge (2015) has observed, Kennedy missed a perfect opportunity in this case to show the originalists that the original meaning of the Constitution really did require constitutional protection for same-sex marriage. The five justices in the majority and two of the dissenting justices (Roberts and Alito) ignored original meaning altogether.
As Steven Calabresi and Hannah Begley (2016) explain it, a good originalist reading of the 14th Amendment needs to show the original meaning of the constitutional text as opposed to any supposed original intent of those who wrote or ratified that text. In the case of same-sex marriage, the crucial constitutional text is the second sentence of the first section of the 14th Amendment:
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."Looking for the original intent of the congressmen who wrote and ratified this Amendment, an originalist like the late Chief Justice William Rehnquist would say that the framers of the 14th Amendment wanted to strike down the Black Codes in the southern states that were pushing the newly emancipated black slaves into an inferior caste status; and therefore the 14th Amendment is limited to prohibiting race-based discrimination, and it does not apply to other kinds of discrimination--such as sex discrimination or discrimination against homosexuals. Moreover, those like Rehnquist might say, there is no evidence in the legislative history of the 14th Amendment that anyone intended that the amendment would be applied to striking down state bans on same-sex marriage.
There are problems with this kind of analysis. First, it ignores the actual text of the Constitution. The word "race" does not appear in the 14th Amendment, and therefore there is no textual basis for restricting its scope to racial discrimination. Even the 13th Amendment, which abolishes slavery, does not mention race, because it abolishes slavery generally, not just racial slavery. By contrast, the text of the 15th Amendment does specifically mention race: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude."
We should say, then, as Scalia did, that the original meaning of these legal texts is found in the words themselves, and not in any imagined intent of those who wrote or ratified these texts. We are governed by the words of our laws, and so it is the public meaning of those words that counts.
The second problem with an originalism of original intent is that it forces originalists into awkward positions. For example, the theory of original intent cannot explain or justify the Supreme Court's decision in 1967 in Loving v. Virginia, which held that laws banning racial intermarriage were unconstitutional violations of the 14th Amendment, although most originalists would probably want to say that that was a good decision. Anyone who looks at the legislative history of the 14th Amendment will see that critics of the Amendment warned that it would strike down the laws against racial intermarriage, which would lead to the degeneration of the races by creating "mongrels"; and the defenders of the Amendment had to deny this. This forces an originalist to conclude that the decision in Loving v. Virginia was wrong, because it was contrary to the original intent of the 14th Amendment (Calabresi and Matthews 2012).
The only way to save originalism from these problems is to follow Scalia in looking to the original public meaning of the words of a legal text rather than the subjective interpretations of the text by legislators. Perhaps the best example of a commentary on the Constitution that derives the original meaning from a careful reading of the text itself is George Anastaplo's The Constitution of 1787: A Commentary (1989). In his concern for finding the public meaning of the words of the Constitution, Anastaplo was influenced by his teacher at the University of Chicago Law School--William Winslow Crosskey.
The opinions that legislators have about the laws that they have written and ratified are often contradictory and motivated by a desire to impose their personal preferences on the laws. Members of Congress often vote for a bill and then deny that it means what it says, because they want the support of both those who support and those who oppose the bill. If we ask what the intent of the Congress was in writing and adopting a law, we are likely to get the answer that different members of Congress intended different things. If we ask about the original intent of the Framers of the Constitution, we will get the same answer.
In contrast to original intent, the original public meaning of the words in a text can be known objectively by looking at dictionaries and grammar books that indicate the generally accepted meanings of the words at the time the laws were written. One can also look at newspapers and other public records at the time the laws were being ratified to see the public meaning of those words. And one can look at the legal and political history of how those words were used.
So, for example, one can find evidence for the original public meaning of the words of the 14th Amendment that support the conclusion that state laws banning interracial marriage were violations of the Privileges and Immunities Clause, as Calabresi and Matthews (2012) argue. "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." This phrase "privileges or immunities" comes from Article 4 of the Articles of Confederation and Article 4, section 2, of the Constitution, where the "free inhabitants" (Articles of Confederation) or the "citizens" (Constitution) in each state are entitled to the "privileges and immunities" of those in the several states. This has been understood to mean that as citizens of one state travel to or reside in another state, they have all the civil rights--but not the political rights--of the citizens of that state. So, for instance, if the marriage laws of a state allow its citizens to marry a cousin, then a citizen from another state should have the same right to marry a cousin. If "privileges and immunities" include the right to marry, then the 14th Amendment means that no state can abridge the right to marry for black citizens, including the right of a black citizen to marry a white citizen. That's why some of the opponents of the 14th Amendment and the Civil Rights Act of 1866 warned that these laws would strike down the laws against interracial marriage.
Some interpreters of the Privileges and Immunities Clause of the 14th Amendment have argued that it should be read as general language for the rights enumerated in the Civil Rights Act of 1866:
". . . citizens, of every race and color . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens . . ."If a white citizen can contract to marry another white citizen, then it follows that "citizens of every race and color . . . shall have the same right" to contract to marry a white citizen.
In fact, during Reconstruction, when the Republicans controlled the Southern states, the supreme courts of both Alabama and Texas in 1872 unanimously struck down laws banning interracial marriage as contrary to the Civil Rights Act of 1866 and the 14th Amendment. These decisions were overturned in 1877, once Reconstruction was over, and the Democrats took control of these states. In 1871, the Indiana Supreme Court (in State v. Gibson) upheld laws against interracial marriage. And in 1883, the U.S. Supreme Court (in Pace v. Alabama) unanimously upheld Alabama's anti-miscegenation law. What this dispute shows is that it was possible, soon after the adoption of the 14th Amendment, for some judges to see state bans on interracial marriage as contrary to the original meaning of that amendment.
Similarly, one can see the original meaning of the 14th Amendment--particularly, the Equal Protection Clause--as striking down state bans on same-sex marriage, even though those who wrote and ratified the 14th Amendment did not anticipate that this would happen. The original meaning of the Constitution must often be applied to novel circumstances that were not foreseen by the people who originally wrote and ratified the language of the Constitution. In this case, we must apply the original meaning of "the equal protection of the laws" to a demand for same-sex marriage that arose at the end of the 20th century in the United States.
In 2014, the United States Court of Appeals for the Sixth Circuit reversed Judge Bernard Friedman's ruling in DeBoer v. Snyder overturning Michigan's ban on same-sex marriage. The Court held that the Equal Protection Clause of the 14th Amendment does not apply to state marriage laws, because there is no evidence that "the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage." But as Eskridge and Calabresi (2015) have pointed out, this Court's concentration on original understanding--how the original supporters of the 14th Amendment understood its immediate effect--ignores how the original meaning of the words "equal protection of the laws" applies to state bans on same-sex marriage.
The words "equal protection of the laws" evoke a long history of legal and political thought about the primacy of equality under the law, going back at least as far as John Locke's account of human equality in the state of nature (Calabresi and Begley 2016). Locke's affirmation that all men are by nature equally free in their rights to life, liberty, property, and the pursuit of happiness was echoed in the Virginia Declaration of Rights and the Declaration of Independence in 1776, and in most of the state constitutions after 1776. The Massachusetts Constitution of 1780, declared that "all men are born free and equal, and have certain natural, essential, and unalienable rights." It also declared: "Government is instituted for the common good; for the protection, safety, prosperity and happiness of the people; and not for the profit, honor, or private interest of any one man, family, or class of men." Thus, a respect for equality as equal treatment under the law required the prohibition of any legislation unjustly favoring any class of people over others.
In 1868--the year that the 14th Amendment was ratified--24 of the 37 state constitutions existing at that time had provisions guaranteeing inalienable or natural rights that belonged to all persons as naturally born equally free (Calabresi and Agudo 2008). The right of people to be free and equal at birth bars legislation that creates inferior castes or classes.
In the context of this history, one can interpret the original meaning of "equal protection of the laws" in the 14th Amendment as forbidding any state laws that discriminate against classes of citizens. Senator Jacob Howard in 1866 explained that the words "race" and "color" were dropped from the 14th Amendment because:
"The last two clauses of the first section of the amendment disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State. This abolishes all class legislation in the States and does away with the injustice of subjecting one caste of persons to a code not applicable to another."We can now see that state laws granting a right to marry to heterosexuals but denying that right to homosexuals commit "the injustice of subjecting one caste of persons to a code not applicable to another," and therefore they violate the 14th Amendment's prohibition of state laws that deny "to any person within its jurisdiction the equal protection of the laws."
Here is how John Corvino (2012) expressed this point:
"Once the state provides marriage as an option for different-sex partners, even if they cannot or choose not to have children; even if they are elderly; even if they are divorced; even if they are incapable of coitus, and thus what the new natural law theorists consider 'real marriage'--once the state provides marriage in all these diverse cases and more, but then denies it to same-sex couples, it is treating citizens unequally" (89-90).
Anastaplo, George. 1989. The Constitution of 1789: A Commentary. Baltimore, MD: Johns Hopkins University Press.
Calabresi, Steven, and Sarah Agudo. 2008. "Individual Rights Under State Constitutions when the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?" Texas Law Review 87: 7-120.
Calabresi, Steven, and Hannah Begley. 2016. "Originalism and Same-Sex Marriage." University of Miami Law Review 70: 648-707.
Calabresi, Steven, and Andrea Matthews. 2012. "Originalism and Loving v. Virginia." Brigham Young University Law Review 2012: 1394-1454.
Corvino, John. 2012. "The Case for Same-Sex Marriage," in John Corvino and Maggie Gallagher, Debating Same-Sex Marriage. Oxford: Oxford University Press.
Eskridge, William. 2015. "The Marriage Equality Cases and Constitutional Theory." Cato Supreme Court Review 14: 111-138.
Eskridge, William, and Steven Calabresi. 2015. Brief of Amicus Curiae Cato Institute, William Eskridge and Steven Calabresi in Support of Petitioners, Obergefell v. Hodges 135 S. Ct. 2584 (2014) (No. 14-556).