Legal Commentary

Explaining the Wide Range of Answers on When the Right to Same-Sex Marriage Was Created

By Orin Kerr

In an earlier reader poll, I asked readers who believe that the Constitution requires requires same-sex marriage to indicate when the Constitution began to require it. The results were fascinating: Readers disagreed widely as to the answer, with responses spread pretty evenly among the different centuries and periods of U.S. constitutional history. What, if anything, does that suggest?

My guess is that we?re picking up the very different strands of what readers think it means to interpret the Constitution. Some readers believe that the Constitution never changes: Only interpretations change, as humankind becomes more enlightened. To most of those readers, the operative date necessarily would be when the relevant Constitutional provision was ratified. Other readers think of constitutional interpretation as interpreting precedents, and look to when cases were handed down that establish the doctrinal case for same-sex marriage. To those readers, the key date would be when the most important precedents appeared. Still other readers see the Constitution as mirroring enlightened social attitudes. I gather they focus largely on when same-sex marriage began to appear irrational enlightened people, which is only quite recently.

Those are my guesses, anyway. Actual mileage may vary. Void where prohibited.

Full post as published by The Volokh Conspiracy on August 09, 2010 (boomark / email).