Mssrs. Gans and Kendall discuss conservative jurists' and lawyers' embrace of a wider conception of the Fourteenth Amendment than many of us had feared. This is important, not only for what a narrow interpretation of, say, the Equal Protection Clause, might mean for the future of justice in this country, but what it may mean for specific cases involving women, gays, and other historically disadvantaged minorities.
Here is their argument in brief: Conservative legal luminaries have for some time argued that the Fourteenth Amendment, which provides, in relevant part, that "no state shall … deny to any person within its jurisdiction the equal protection of the laws," does not protect women from sex discrimination. Their rationale is that women were not on the minds of the drafters of the Amendment, African-Americans were.
And, indeed, the original version of section 2 of the Fourteenth Amendment, only required that all men be allowed to vote, implicitly allowing states to impose discriminatory voting laws on the basis of sex. But, conservatives like Ted Olson and Steven Calabresi disagree. If, as Justice Scalia says, the text of the Constitution is paramount, his myopic view of the Fourteenth Amendment is not only contrary to our sense of justice, but violative of the very text he reveres. When the states ratified the Nineteenth Amendment, finally giving women the right to vote, section 2 of the Fourteenth Amendment was changed. This took away the Fourteenth Amendment's only limitation on the guarantee of equality, which now has to be understood, according to Professor Calabresi, as banning "all systems of caste and subordination."
With that, Professor Calabresi, the founder of the conservative legal organization, The Federalist Society, sounds more like Larry Tribe, the famous liberal lion of constitutional law. Mssrs. Gans and Kendall suggest that we are coalescing around a broad view of the Fourteenth Amendment as the provision that "redeemed the Constitution from the sin of slavery" by making all forms of second-class citizenry unconstitutional, not just a particular racist attitude toward blacks. Equality, the authors write, "is neither a progressive nor a conservative idea: It is an American idea." Heart-warming words, indeed, and ones that are at the core of our community's bi-partisan push toward recognition as members of society just like everyone else.
But, while Professor Calabresi's argument is historically accurate and persuasive (you can read his law review article here, if you have a long plane ride ahead of you), Mssrs. Gans and Kendall should take a step back before coming to such grand conclusions for at least two reasons.
First, coalescing around a broad reading of the Equal Protection Clause is great, but if we must do so on the back of a textualist or originalist interpretation of the Constitution, I am afraid we miss the forest for the trees. Textualism and originalism, simplified as the interpretive theories that argue that the Constitution means whatever the words meant when they were written, has long been a tool of the legal right wing to turn back the clock to a minimalist federal government — before Roe v. Wade, before the Warren Court, before the New Deal and Progressive Era.
For example, the Commerce Clause never imagined federal interference in telling farmers what they can and cannot grow (Wickard v. Filburn), nor did any part of the Constitution imagine Miranda warnings, the exclusionary rule, or the illegality of the death penalty. Admittedly, accepting a textualist interpretation of one clause does not necessarily require us to be textualists in all cases, but it does assume the validity of the interpretive method. I am not sure we want that.
Second, it is a logical jump to suggest that a view of the Fourteenth Amendment that protects women from sex discrimination also protects gays from sexual orientation discrimination. State and federal courts have been making this distinction for years — being fired for being gay is a form of sexual orientation discrimination, not being able to marry someone of the same sex is a form of sexual orientation discrimination — even though it is logically dubious. Marriage discrimination is a form of sex discrimination: not being able to marry a man simply because you are a man is discrimination based on you being a man. Still, this argument has rarely held sway. Even if it did, Professor Calabresi's argument fails us. His view that the Fourteenth Amendment does indeed ban discrimination against women on the basis of sex is in part dependent on the passage and textual implications of the Nineteenth Amendment, granting women the right to vote and amending the Fourteenth Amendment to explicitly eliminate sex discrimination in voting. No such textual amendment is handy to help gay and lesbian Americans in their quest for equality.
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.
That suggests that the textualist interpretation is wrong and, at a minimum, not our ally when it comes to cases like Perry. Mssrs. Gans and Kendall are right to point out that textualists are making progress; but they are wrong to see that progress as even remotely sufficient.
Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.
Follow Ari on Twitter at @ariezrawaldman.