Reading Deboer and Obergefell through the "moral readings versus originalisms" debate: from constitutional "empty cupboards" to evolving understandings.

• Author: McClain, Linda C.
• Position: Book review

FIDELITY TO OUR IMPERFECT CONSTITUTION. By James E. Fleming. (1) New York: Oxford University Press. 2015. Pp. xv + 243. $75.00 (cloth).

Original meaning.... When two individuals sign a contract to sell a

house, no one thinks that, years down the road, one party to the contract may change the terms of the deal. That is why the parties put the agreement in writing and signed it publicly --to prevent changed perceptions and needs from changing the guarantees in the agreement. So it normally goes with the Constitution: The written charter cements the limitations on government into an unbending bulwark, not a vane alterable whenever alterations occur--unless and until the people, like contracting parties, choose to change the contract through the agreed-upon mechanisms for doing so [Article V].

... Applied here, this approach permits today's marriage laws to stand until the democratic processes say they should stand no more. From the founding of the Republic to 2003, every State defined marriage as a relationship between a man and a woman, meaning that the Fourteenth Amendment permits, though it does not require, States to define marriage in that way.

--DeBoer v. Snyder, 772 F.3d 388, 403-04 (6th Cir. 2014) (Sutton, Jeffrey, Circuit Judge)

The majority's "original meaning" analysis ... can tell us little about the Fourteenth Amendment, except to assure us that "the people who adopted the Fourteenth Amendment [never] understood it to require the States to change the definition of marriage." The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws across the country, beginning in California in 1948 and culminating in the Loving decision in 1967....

Moreover, ... [t]here is not now and never has been a universally accepted definition of marriage ... When Justice Alito noted in Windsor that the opponents of DOMA were "implicitly ask[ing] us to endorse [a more expansive definition of marriage and] to reject the traditional view, Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting), he may have been unfamiliar with all that the "traditional view" entailed, especially for women who were subjected to coverture as a result of Anglo-American common law. Fourteenth Amendment cases decided by the Supreme Court in the years since 1971 that "invalidated] various laws and policies that categorized by sex have been part of a transformation that has altered the very institution at the heart of this case, marriage." Latta [v. Otter], 771 F.3d 456, 487 [9th Cir. 2014] (Berzon, J., concurring).

--DeBoer v. Snyder, 772 F.3d at 431-32 (Daughtrey, Martha Craig, Circuit Judge, dissenting)

History really matters in Obergefell v. Hodges ... History, like the Constitution, can be read in more than one way.

--Nancy F. Cott, Which History in Obergefell v. Hodges?, PERSPECTIVES ON HISTORY (July 2015)

1. INTRODUCTION

   What's in a name? Why do labels such as "moral reader" or "originalist" matter? The title of the conference that generated this published symposium suggests one context in which such labels matter: constitutional interpretation. (3) We must consider the merits, it implies, of two approaches in evident tension with each other: "moral readings versus originalisms." As the judicial statements quoted above indicate, this interpretive choice mattered for a practical and momentous constitutional controversy that recently riveted the attention of scholars, judges, legislators, and the public: what would the United States Supreme Court do when it considered DeBoer v. Snyder, (4) the Sixth Circuit case in which Judge Sutton's majority opinion created a circuit split--disagreeing with the Fourth, Seventh, Ninth, and Tenth Circuits--by upholding statutes and constitutional amendments in four states (Kentucky, Michigan, Ohio, and Tennessee) that excluded same-sex couples from civil marriage and barred recognition of their valid out-of-state marriages. On January 16, 2015, the Supreme Court granted the petition for certiorari in that case. Amicus curiae (friends of the court) filed a record number (147) of amicus curiae briefs in the case, (5) proffering many different constitutional pathways to reversing or affirming the Sixth Circuit. On June 26, 2015, in Obergerfell v. Hodges, the Court did reverse, issuing its landmark holding that "same-sex couples may exercise the fundamental right to marry" and that the state laws at issue were invalid "to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples." (6)

   As historian Nancy Cott observed, "history really matter[ed]" in Justice Kennedy's landmark majority opinion, specifically, the history of the institution of marriage and how it has "changed over time to admit new understandings of liberty and equality" as well as "the history of condemnation and criminalization of same-sex intimacy until recent decades." (7) History also mattered in the various dissenting opinions, for, as Cott observed, "more than one version of the history of marriage [was] operating." (8) Chief Justice Roberts asserted that marriage is an '"unvarying social institution'" (9) and invoked the "singular understanding of marriage [that] has prevailed in the United States throughout our history." (10) Dissenting Justice Scalia insisted that "the People's understanding"--"when the Fourteenth Amendment was ratified in 1868"--that states did and could (constitutionally) limit marriage to one man and one woman "resolves these cases." (11)

   In this essay, I will argue that Justice Kennedy's landmark majority opinion in Obergefell crucially deployed two forms of evolving understanding--of constitutional guarantees of equality and the "promise of liberty" as well as of the institution of marriage. Those two forms of evolution worked together in his opinion to reject a static notion either of the fundamental right to marry or of marriage itself. This approach to constitutional reasoning exemplifies the "moral reading" approach articulated in James E. Fleming's recent book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalism. As Fleming explains: "Moral readers accept our responsibility not to retreat from interpreting the Constitution so as to fulfill the promise of our commitments to abstract aspirational principles such as liberty and equality--not to retreat to originalism" (p. 191). Such an approach, evident in Justice Kennedy's prior landmark LGBT rights decisions, such as Lawrence v. Texas, (12) stresses the role of "insight" and of generational progress in coming to see "that laws once thought necessary and proper in fact serve only to oppress." (13) In Obergefell, as elaborated below, two such examples concern the repudiation of the laws of coverture and sex-based classifications perpetuating gender hierarchy within marriage and of laws barring interracial marriage.

   Previewing the interpretive battle between the Obergefell majority and the dissents (but with the sides reversed), in DeBoer v. Snyder Judge Sutton (writing the majority opinion) and Judge Daughtrey (in dissent) took sharply contrasting views of the relevance of "original meaning" with respect to the definition of marriage and the Fourteenth Amendment. These two judges' contrasting approaches to marriage--whether universal and (until recently) unchanging or evolving in light of constitutional norms of equality--are of particular interest for the evident conflict between moral readings and originalisms. Judge Sutton's analysis of "original meaning," for example, drew critiques by some legal scholars, who contended that there were originalist arguments for same-sex marriage, such as a "principles-based originalism" that "leaves room for the possibility that we may learn from experience and systematic study that laws once thought necessary and proper serve only to needlessly oppress." (14) Indeed, two groups of prominent legal scholars filed amicus briefs in Obergefell enlisting the "original meaning" of the Fourteenth Amendment to oppose the restrictive marriage laws at issue, (15) spurring other originalist scholars to file an amicus brief contesting this approach to defining "original meaning" as pushing the term "originalist" so far that it "ceases to have any real meaning at all." (16)

   Fleming's book went to press prior to Obergefell, but he noted the rise of "new" or "inclusive" originalist arguments for same-sex marriage, some growing out of new originalist justification for the Court's sex equality precedents (pp. 16-19). (17) He argued, however, that by "conceiving the relevant original meaning abstractly, rather than specifically," and by making arguments "about the evolving meaning" of commitment to "abstract evolving principles," such originalists "are engaging in moral readings," but without acknowledging that they are doing so (pp. 18-19). This is a persuasive point, and at least some originalists would agree. (18) Perhaps these new originalists should join the moral reading big tent (as Fleming proposes (p. 96)), rather than recruit others to a new, "inclusive" originalist big tent. (19) My primary interest in this essay, however, is not to adjudicate whether the new originalism is a defensible form of originalism, but instead to examine the respective roles of moral readings and originalism in DeBoer and then Obergefell. It is telling that (1) none of the conservative Justices--all of whom dissented--embraced the new originalism in Obergefell, and that (2) although "meaning" and "understanding" feature centrally in Kennedy's majority opinion, they have less to do with fixed or "original" meaning or understanding than with evolving meaning and new understandings of constitutional guarantees and principles. An analysis of Obergefell (and, more broadly, the recent marriage equality litigation leading up to it) suggests that moral readings of the Constitution...