Our Supreme Court–Was It Born That Way?

Our Supreme Court is very likely about to experience springtime. I imagine five and maybe six (hard to imagine more, but you never know) justices providing simple justice to Mr. Obergefell et al. The “question presented” is straightforward enough: should the Fourteenth Amendment’s guarantee of equal protection of the laws be read now in 2015 to include gay people? Of course it was not envisioned in those terms in the 1860s. The Court could withhold extension of equal marriage rights by adhering to “original meaning” but I think it will instead be a victory for “living originalism” and “substantive due process.”

It really comes down to a crabby vs. no-longer-crabby view of this text: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” It is not about “strict” vs. “loose” interpretation.  It is about waking up, putting on some glasses with an updated prescription, then focusing on the constitutional text.  And by the way, despite the long winter, smelling the roses.


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