Today, Even Good News Takes the Form of Bad News
By 6CA’s decision to force the Supreme Court’s hand is likely to ultimately have good consequences. Sutton’s opinion unintentionally reveals why the bans can’t be defended:
Finally, Sutton reverts to the fancy theoretical means conservatives use to justify exclusionary traditions: originalism. One conservative legal blogger argues that Sutton’s claim that “[n]obody in this case…argues that the people who adopted the Fourteenth Amendment understood it to require the States to change the definition of marriage” should “be the beginning and end of the analysis.”
Let’s leave aside the many problems with the originalist approach to constitutional interpretation. The fact is that relying on the particular policy expectations of individual framers isn’t even good originalism. The framers and ratifiers of the Fourteenth Amendment enacted a general principle of equal protection, not the specific policy expectations of individual lawmakers.
Indeed, most framers and ratifiers of the Fourteenth Amendment thought that segregated schools and bans on interracial marriage were consistent with the equal protection of the laws, but this doesn’t make Brown v. Board of Education and Loving v. Virginia wrong. The only question is whether the Fourteenth Amendment’s equal protection principles are consistent with excluding gays and lesbians from the fundamental right to marry. The answer to that question is “no.”
The most fundamental problem with Sutton’s argument, as Judge Daughtrey eloquently observes, is that “the majority treats both the issues and the litigants here as mere abstractions” while not “recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there.”
All of the hand-waving about federalism and judicial rights cannot disguise the fact that this case involved victims of unconstitutional, invidious discrimination that does very real harm to their lives. Hopefully, the Supreme Court will correct this injustice sooner rather than later.