[NOTE: This post has been UPDATED]
I encourage readers to take a look at the enlightening debate taking place on the Volokh Conspiracy over whether there are valid originalist arguments supporting same sex marriage, i.e., supporting the view that laws restricting marriage to partners of the opposite sex violate the Fourteenth Amendment. Ilya Somin, supported by ace political theorist Larry Solum, believes there are — here, here, and here. Orin Kerr is skeptical — here and here.
At least for the moment (and probably longer), I’d like to stay on the sidelines of this debate, but I would appreciate it if someone could persuade me that I’m mistaken in seeing an inconsistency — or at least a good deal of unresolved internal tension — in one part of Somin’s approach. Here’s Kerr:
As I noted in my post, and Ilya agreed, the purportedly originalist arguments for a constitutional right to same-sex marriage work in two steps: “(A) assert that the Fourteenth Amendment adopts a broad principle, and then (B) argue that same-sex marriage laws violate that principle.” In my post, I argued that the arguments aren’t providing enough evidence at step (A), in that they have not established that the broad principle alleged to be adopted at the time of the Fourteenth Amendment was actually contemplated by the public meaning at or near the level of generality asserted.
Here’s my problem. Whether or not Kerr is correct, Somin obviously does believe that “the broad principle” was in fact adopted— and it would have to be pretty broad indeed to demand the invalidation of laws restricting marriage to a man and a woman! — and yet on a number of occasions, such as here and here, he has made it clear that he does not believe the “the broad principle” established by the Fourteenth Amendment is broad enough to prohibit the state from burdening some individuals and benefiting others based on their race, so long as the purpose of the racial discrimination was to compensate for past racial discrimination.
A principle that, on originalist grounds, can be broad enough to eliminate restrictions on same same marriage but at the same time narrow enough that it does not prohibit all state-sponsored racial discrimination seems to me to render it too flexible to be a reliable barrier against anything.
UPDATE 1 Feb.
Ilya Somin emailed a very thoughtful reply, and over the course of a couple of additional, equally thoughtful emails has persuaded me that I have mischaracterized his position on affirmative action and hence posited a conflict between that position and his approach to same sex marriage that does not exist.
I had thought he had no principled objection to some versions of affirmative action because of comments in his posts I cited, as well as in this one I did not stating that “It is not my view that the original meaning of the Fourteenth Amendment clearly requires courts to strike down all affirmative action programs.” Ilya replied that while he does not believe all conceivable forms of affirmative action — such as a very narrowly tailored compensatory program — are in principle prohibited by the original meaning of the the Fourteenth Amendment, he believes in scrutiny that is in fact so strict that few if any existing affirmative action programs can pass the test he would apply, which is the same test he would apply to laws banning same sex marriage.
We continue to disagree on whether it is possible even to imagine a compensatory racial preference scheme that should pass muster.
Finally, a note about blogging itself. Given all the attention lately devoted to the hostility expressed in the social media (see the responses to Jonathan Chait’s article in New York magazine on political correctness) and, unfortunately, some blogs over even very slight disagreements, it is worth pointing out and emphasizing how contributors to the best blogs — and the Volokh Conspiracy is certainly one of the best — can actually elevate the level of political discussion while practicing civility. Disagreements do not have to be hostile and can actually promote rather than inhibit understanding. Thus I’d like to thank not only Ilya but all his colleagues on Volokh for contributing so much to that process.
