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.