Equality for All

The Supreme Court's ruling on gay marriage in Obergefell v. Hodges has been met with uncomplicated reactions: Depending upon your viewpoint, either the majority is part of a Satanic krytocracy or the dissenters are reactionary homophobes. All Americans deserve a more nuanced discussion.

Ignoring Justice Antonin Scalia's juvenile hysteria, Justice Clarence Thomas makes a cogent argument against "substantive due process," the rather tortured doctrine by which the court historically has justified excursions into substantive rights not specifically enumerated in the Constitution. Conservatives liked substantive due process just fine back when it was used to justify striking down economic regulations; they turned against it, however, when liberals deployed the same concept to bar restrictions on contraception, marriage, abortion and other aspects of what Justice Anthony Kennedy, in the opening sentence of the majority opinion, calls "a liberty that includes certain specific rights that allow persons … to define and express their identity."

[SEE: Editorial Cartoons on Gay Marriage]

The hypocrisy of conservative criticism of judicial activism aside, the argument for a limited judicial role, tied to the constitutional text, is an important one, and is laid out compellingly in Chief Justice John Roberts' dissent. The central debate in constitutional law for the last few decades has been between those who believe in originalism – that the Constitution must be interpreted as those who wrote it intended – and those who believe in a "living document" that we are free to interpret in light of contemporary values. In general, originalism is the province of conservatives and the "contemporary values" approach that of liberals. As I've written here before, "On this score, count me with the conservatives: I believe it's incoherent to assert that the nation's fundamental law can mean to us whatever we want, independent of what those who adopted it intended – and it's undemocratic to insist that a handful of unelected judges can impose such changes in meaning at their whim."

The problem, to me, with Kennedy's Obergefell opinion is its focus on marriage as a fundamental right rather than on equality. The "fundamental right" aspect of the case bogs down, as do all such discussions, on the definition of the right at issue. Kennedy waxed eloquent on the fundamental nature of "marriage"; the dissenters focused on whether there is a fundamental constitutional right to "same-sex marriage," and, of course, found there is none, either in the constitutional text (which creates no right to marriage of any kind) or in the intent of the Framers. This construction, in my view, unfortunately miscasts both the issue and the intent of the Framers.

[READ: Love and the Politics of Stupidity]

This case was not about whether the government could ban a certain activity, but whether it could deny access to it by certain individuals rather than others. As Thomas complained, the "liberty" at issue under the due process clause has generally been held to mean freedom from government, not entitlement to the provision of something by the government; to Thomas, that settled in the negative the question whether gay Americans have any right to demand "benefits" from state governments. Rather, it really just raises the issue that all states have already chosen to provide such benefits, so can they be denied only to some types of Americans? Just as Kennedy spent little time on the equality argument, so too do the dissenters, with Roberts dismissing it quickly with the assertion that equal protection claims require that the state show merely a rational basis for any form of state-sponsored discrimination.

Of course, Roberts and all the dissenters are quick to find a rational basis for governments excluding same-sex couples from marriage: promoting procreation. The problem with this rationale is that not all state-sanctioned marriages today are procreative. Could a state have refused to issue marriage licenses to straight octogenarians? Probably not, both as a matter of constitutional law and political reality. Which brings us to the reality of gay marriage laws, which is that we know that opposition to gay marriages is not because they are non-procreative, but because they are gay. The dissents are at pains to present this opposition as emanating from "sincere" and purely religious beliefs having nothing to do with small-mindedness or hatred. But that still doesn't meet the "rational basis" test comprising the lowest level of constitutional scrutiny.

Rather, laws against gay marriage today are directed against an identifiable group that has been the object of virulent historical discrimination based on (and this opens an entire can of worms that the court clearly doesn't want to address) an immutable trait. Of course, these are the three factors under well-established constitutional jurisprudence for a "suspect classification" (or at least, like gender, a "quasi-suspect classification") requiring "heightened scrutiny" – legalese for "no way will this fly, constitutionally."

[READ: Views You Can Use: Love Wins]

Since the heyday of antidiscrimination litigation, the court, led by its conservatives, has put the stop to recognizing suspect classifications beyond the obvious one of race, which animated adoption of the equal protection clause to begin with. This would be consistent with an originalist perspective that the writers of the 14th Amendment wrote it to protect the recently-freed slaves, not other groups such as, say, women, as has come to be the case. Scalia in fact frequently has made this argument – but it is problematic, since he and his conservative colleagues have used the equal protection clause to protect white people against ostensible discrimination in favor of blacks, which pretty clearly was not the concern of anyone in 1865, either. If "equal protection" can be expanded beyond its original, specific intent of protecting black Americans in order also to protect white Americans – if even a conservative court could have started this process by extending it to protect Chinese Americans in 1886 – then why can it not also come to protect others targeted for discrimination, like gay Americans in 2015?

This is the question at the core of constitutional interpretation, captured in one of the most famous, if enigmatic, exclamations in constitutional history when Chief Justice John Marshall wrote, "It is a Constitution we are expounding." What Marshall – who, unlike us, knew the Framers – meant when he wrote of a document "intended to endure for ages to come" was not one so rigid that it would stand against all storms but rather one supple enough to bend with the inevitable winds of history. If you're an originalist like me, or as the court's conservatives purport to be, you accept that the Constitution must be interpreted as its authors and ratifiers intended, until later generations formally change it – but also that those Framers, in their wisdom, knew they were writing a document that would need to be robust and flexible enough to accompany the march of human history.

Yes, they specified things like the fact that the president must be at least 35 years old, and "35" has a clear and definite meaning. But they also never specified what process is "due," what punishments are "cruel and unusual," or what "equal protection of the laws" means in every instance. They laid down the great principles, and then left it to us to live under and apply them. That's not the same thing as making it up from scratch all the time, but it is what makes it possible for so many things that those Framers never "intended," yet make us proud to be Americans today, to flow logically and inexorably from their original intent: for a Chinese laundry operator in 1886 San Francisco seeking the same business license, a black school child in Kansas in 1954 seeking to attend the same school, or a gay Ohioan seeking in 2015 to obtain for his spouse the same death certificate as every other American, to take their cases to the highest court in the land and obtain, as it says on the building's architrave, equal justice under law.

That, and not the admittedly inadequate reasoning of the opinion, is what made me, like so many other Americans, swell with pride at being an American upon reading Kennedy's words last Friday. And, despite what Roberts insists, yes, it does have absolutely everything to do with the Constitution.