Amicus Brief Profile: a War of Original Understanding

In a short series, I will profile several individual amicus briefs filed in the same-sex marriage cases currently consolidated before the U.S. Supreme Court and slated for oral argument on April 28, 2015.

In the same-sex marriage cases currently before the Supreme Court (consolidated as Obergefell v. Hodges), over one hundred amicus (or "friend of the court") briefs have been filed. The majority are in support of the petitioners - same-sex couples from Kentucky, Michigan, Tennessee, and Ohio. Amicus briefs in favor of the respondents - the states - are less in number but no less fervent.

In previous installments, I have profiled one amicus brief at a time. But today, I will profile two. The first is Brief of Amici Curiae Cato Institute, William N. Eskridge Jr., and Steven Calabresi in Support of Petitioners. Along with Eskridge, counsel for these amici is Ilya Shapiro of Cato. The second is Brief of Amici Curiae Scholars of Originalism in Support of Respondents, William C. Duncan of the Marriage Law Foundation as counsel of record.

First, a little background. Steven Calabresi is a Yale Law School graduate who now teaches at Northwestern University. While at Yale, he co-founded the Federalist Society, then went on to clerk for Judge Robert Bork at the D.C. Circuit and Justice Antonin Scalia at the U.S. Supreme Court. Few can rival Professor Calabresi's conservative legal credentials. Ilya Shapiro, similarly, is a big name among libertarian legal scholars, and the Cato Institute has long been a major conservative policy promoter. Professor Eskridge, for his part, has spent many years arguing against anti-gay discrimination in the law.

William Duncan of the Marriage Law Foundation is a conservative activist opposed to same-sex marriage. He writes on behalf of several conservative law professors, including Lawrence Alexander of the University of San Diego, Bruce Frohnen of Ohio Northern University, and George Mason professor Nelson Lund (a frequent writer for the conservative Heritage Foundation).

From that roster of names, you might think the briefs would agree. They do not.

The brief by Eskridge, Calabresi, and Shapiro ("the Cato brief"), was filed on behalf of the Petitioners (the same-sex couples) and therefore first. The "Scholars brief" was filed second, and contrary to standard amicus brief practice (where the amici argue whether the opinion below was right or wrong) it confronts the first brief head-on. In fact, it doesn't address the Sixth Circuit opinion much at all - it restricts its focus to the wrongness of the Cato brief.

So what does the Cato brief actually argue? It approaches the question of same-sex marriage from an "originalist" perspective. Originalism is a method of legal interpretation that seeks - whenever the actual text of a law is silent on a precise issue - to discern what the drafters (or "framers") of a law or constitutional provision either intended or meant to do at the time. There is actually a dispute among originalists whether the intent or the meaning is more important, and that dispute rears its head in these two briefs.

The Cato brief begins by criticizing the Sixth Circuit's opinion, which cited the "original understanding" of the Fourteenth Amendment. That understanding, in Judge Jeffrey Sutton's view, never could have anticipated same-sex marriage and therefore the Amendment does not compel states to recognize such unions. That approach was wrong, the Cato brief argues. The correct focus should be on the "original meaning," or how the "well-established meaning of terminology added to the Constitution in 1868 applies to modern exclusions of new as well as established social groups."

So what is that "original meaning?" Cato argues that it is twofold - that the Equal Protection Clause ensures equal laws and prohibits "caste legislation." Regardless of whether the framers of the Fourteenth Amendment anticipated gay marriage per se, the meaning of the broad language they enshrined in the constitution is clear: the government could not then and cannot now deny equal protection to castes of unpopular or undesirable citizens.

This "original meaning" is illuminated by underlying principles which are fixed but must be applied to new situations as they arise:

The Cato brief then addresses several contrary assertions. First, it disputes that the Fourteenth Amendment should be viewed through a "narrow, race-based view," on two bases: that equal protection was a concept embraced broadly by Americans prior to the Civil War and drafts of the Amendment which restricted its protections to issues of race were rejected in favor of broader language.

The Sixth Circuit held that gay marriage bans were rational because they merely codified long-established views about marriage. The Cato brief argues the opposite - the bans are constitutionally suspect because they are "new expressions of anti-gay attitudes that dominated American public law in the 20th Century." And simply because gay people were not identified as a distinct category of person in 1868 does not make them any less distinct today. In fact, by the 1950s they were distinguished as a criminal class by anti-sodomy laws. Therefore, Cato argues, the Fourteenth Amendment protects them from governmental attack.

Furthermore,

The Cato brief then concludes by attacking the various state justifications for discriminatory marriage bans in much the same way that the Petitioners themselves have done.*

The Scholars brief launches into a direct attack on the Cato brief in its very first sentence, arguing that the latter is "contrary to what nearly everyone had until recently supposed" about "the original meaning of the Fourteenth Amendment."

The Scholars criticize Cato's distinction between "original understanding" and "original meaning," calling it "untenable" and not based on either of the predominant originalist approaches toward intent or meaning. Yet, even accepting Cato's interpretation of the Fourteenth Amendment (as a general prohibition of class legislation), the state marriage bans do not run afoul of it because they are a benign adoption of "a traditional conception of marriage."

On the first subject, the Scholars write:

The Scholars brush aside the internal debate among originalists regarding intent vs. meaning. Both approaches attempt to discern the "original understanding" of a law or constitutional provision.

Of course, the Scholars admit, laws prohibiting theft enacted centuries ago aren't restricted to theft of goods that existed at the time. It is just as illegal to steal a cell phone as it is a wood-burning stove. But that's not the point. The Fourteenth Amendment, they say, could not be designed to prevent class legislation such as the states' marriage bans because nearly every law applies to classes of people in some form or another. And even though class distinctions historically considered suspect (race, religion, ancestry) are foreclosed in most cases, the Fourteenth Amendment can't possibly extend to gay marriage bans because those laws don't really single out and mistreat people based on sexual orientation:

The Scholars brief echos the Kentucky brief by arguing that "persons of any sexual orientation are wholly free to marry if they so choose." Or, conversely, both gay people and straight people are equally prohibited from marrying people of the same sex. This is an echo of the arguments made in favor of interracial marriage bans prior to Loving v. Virginia. According to the defenders of anti-miscegenation statutes, those laws were not discriminatory because both whites and blacks were prohibited from marrying people of a different race. In Loving, the Supreme Court unanimously rejected this argument.

Perhaps acknowledging the obvious historical parallel, the Scholars attempt to distinguish Loving. First, interracial marriage bans didn't define marriage, they argue. Second, bans on interracial marriages "accepted the traditional and legal conception of what marriage is" (two people of different sexes), but then wrongly imposed race-based restrictions on which different-sex couples could enter the institution. The two situations are clearly different, the Scholars say, because gay people are fully allowed to enter different-sex marriages.

It is worth noting here that, aside from the fact that this argument precludes gay people from marrying people they actually desire to marry, it conflicts with originalist interpretations of the Fourteenth Amendment prior to Loving. In 1966, the Virginia Law Review published an article by Alfred Avins titled "Anti-Miscegenation Laws and the Fourteenth Amendment: the Original Intent." "I believe that once the original understanding and intent of the framers is ascertained, the inquiry [as to the constitutionality of interracial marriage bans] should be at an end," Avins wrote.

So what was the "original understanding and intent" of the Fourteenth Amendment's framers? Avins explores debates within Congress beginning in 1864. It turns out that the framers made many references to interracial marriage in their discussions, mostly dismissive. As Avins explains:

In other words, Congressmen at the time easily dispatched slippery slope warnings from their racist colleagues because they did not intend - or mean - at all for the Fourteenth Amendment to compel an end to interracial marriage bans.

Avins provides quote after quote, mostly from the 39th Congress of 1866. Illinois Senator Lyman Trumbull, a major proponent of both the Fourteenth Amendment and the ill-fated Civil Rights Act, took great pains to distinguish the future impact of the new protections from the elimination of anti-miscegenation laws:

And on and on. Avins makes a very strong case that the original intent (or meaning) of the Fourteenth Amendment was not for the end of anti-miscegenation laws at all. Rather, it fully accepted a prohibition of interracial marriage as one that equally applied to all and was therefore constitutional.

It is hard to argue, therefore, that from an originalist perspective, Loving v. Virginia was correct. If, as the Scholars brief argues, we should not take an abstract approach to discern the underlying principles of the Fourteenth Amendment, and instead must focus on the intent and meaning of the framers from their contemporary worldview, then Loving simply cannot be correct, let alone any future ruling in favor of gay marriage.

And such is the problem with originalism. While perhaps quite useful when interpreting statutes and provisions governing the regulation of commerce, or national security, or the separation of powers, the doctrine fails miserably at illuminating the constitutional rights of individuals. The original Constitution and Bill of Rights were framed when only land-holding white men could vote or hold office. Slavery was legal. Women were the property of their fathers or husbands. In the realm of individual rights, relying on the intent or meaning of those framers necessitates a deference to a power structure we now view as abhorrent and unjust. Even the Reconstruction amendments, protecting the rights of blacks to vote and ensuring due process and equal protection under state laws, were framed by people with a profoundly different concept of civil rights and individual liberty than the one we hold today. We should rely on them to define the Constitution forever?

The Cato brief is a welcome departure from this strict view. It embraces an underlying principle of equality that, judging from the words the framers of the Fourteenth Amendment actually used, protects everyone from class-based legislation such as gay marriage bans. Whether or not this new perspective can be called "originalist," I don't know. I'm inclined to agree with the Scholars that it is not. But that's OK. If an originalist perspective cannot find in the meaning of the Fourteenth Amendment an individual right to marry the person of your choice, then what good is it? Whose interest does it serve?

*Of note is the Conclusion section of the Cato brief, which I will discuss in a subsequent post.