Prominent Conservative Argues for Marriage Equality

This is a very interesting development. Cass Sunstein has a column about Steven Calabresi’s argument that the 14th Amendment requires government recognition of same-sex marriages. Why does this matter? Because Calabresi is a legendary conservative legal scholar, one of the founders of the Federalist Society. And his argument is based on gender discrimination:

The most detailed argument comes from Steven Calabresi, a distinguished professor at Northwestern University School of Law, a co-founder of the Federalist Society, a careful student of constitutional history and a long-time defender of originalism. Calabresi begins his analysis with the 17th-century political philosophers Thomas Hobbes and John Locke, who had a lot to say about equality, and whose ideas were borrowed for the U.S. Declaration of Independence. (“All men are by nature equally free and independent and have certain inherent rights,” Locke declared.)

In Calabresi’s view, the U.S. Constitution is committed to “the complete equality of all free-born inhabitants of the thirteen States, at least as far as to the privileges and immunities of state citizenship.” And after the Civil War, the Constitution was amended to produce “a great victory for equality in every way,” including by dismantling a racial caste system.

Calabresi argues that discrimination on the basis of sexual orientation is a form of unconstitutional sex discrimination. A woman who is forbidden to marry a woman is a victim of discrimination insofar as she would not be so forbidden if she were male. He also believes that discrimination on the basis of sexual orientation is “a creature of caste.” Hence bans on same-sex marriage are “ineluctably” unconstitutional.

Calabresi is a prominent advocate of conservative originalism, but his argument here seems more consistent with Randy Barnett’s liberal originalism or Jack Balkin’s living originalism, both of which I think are far more coherent modes of interpretation than the various conservative versions of originalism (there are at least three; this is not as simple a concept as many think it to be). But it’s very encouraging that such an important conservative legal scholar is taking a stand in favor of equality as the Supreme Court prepares to hear the case that will decide the matter (hopefully) once and for all.

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  • Alverant

    How soon before he’s attacked by his fellow conservatives?

  • Michael Heath

    Are there any coherent arguments against gay marriage that consider the 14th Amendment? I’ve yet to encounter any conservatives who are against gay marriage putting one forth*; instead I predominately see them avoid the existence of the 14th Amendment. The most infamous reaction is the law student challenging J. Scalia who then started babbling.

    What’s disappointing regarding my encounters is how it reveals a complete failure by journalism to simply ask conservatives to defend their bigotry in light of the 14th Amendment. That failure’s even worse now given the reliance on it by the federal courts*.

    *I concede I’ve yet to read how the 6th Circuit ruling against gay marriage dealt with the 14th Amendment. So perhaps one argument exists.

  • Alverant


    Are there any coherent arguments against gay marriage


  • eric

    How soon before he’s attacked by his fellow conservatives?

    It will have to be soon or not at all. The “we were always for it” flip will likely occur before January 2016. I.e., sometime between SCOTUS’ ruling on the matter and the first GOP presidential primary.

  • theschwa

    Of course he is for it. All conservatives are for it. Conservatives, especially Christian conservatives, have ALWAYS been for marriage equality here in Oceana!

  • John Pieret

    Michael Heath:

    The Sixth Circuit’s majority basically deferred to the Baker decision, which held, summarily, that there was no Federal question raised by the denial of SSM. When they look at the 14th Amendment, they start by pointing out that the people who wrote and ratified it did not have SSM in mind (i.e. “original intent”).

    Next they decide whether the SSM bans meet the “rational basis” test (the lowest standard that a law has to meet, and finds they do on the grounds that laws about marriage are about regulating sex and the outcome that often happens when men and women have sex: children, specifically who is responsible for the children and how many mates may people have, which could affect the issue of responsibility. Thus, “one can well appreciate why the citizenry would think that a reasonable first concern of any society is the need to regulate male-female relationships and the unique procreative possibilities of them.”

    They found no animus because the SSM bans just “codified a long-existing, widely held social norm already reflected in state law.” (They ignore the fact that the same was true of segregation before Brown.) They wrap it all up in deference to the political process and the ultimate wisdom of the voters.

    They dismiss Loving with another sort of “original intent” by saying if Loving involved a gay black man and a gay white man, nobody thinks the court would have found they had a constitutional right to marry.

    There is a lot more dithering over technical details and arguments but I think that is the heart of their “reasoning” on the 14th Amendment objection to SSM bans.

    It is basically the same talking points that the less rabid and more intelligent opponents of SSM have been spouting all along.

  • John Pieret

    P.S. You can find the decision here:

    The much more cogent dissent of Judge Martha Craig Daughtrey begins on page 43.

  • D. C. Sessions

    I concede I’ve yet to read how the 6th Circuit ruling against gay marriage dealt with the 14th Amendment.

    In short, it didn’t.

  • Crimson Clupeidae

    Another RINO.

    And some people are claiming they’re endangered!