Flawed Originalism: Gay Marriage, Interracial Marriage, & the Constitution

It's obvious that the arguments being used against gay marriages are often identical to those once used against interracial marriage. Among the serious problems with this is how it undermines the position adopted by man conservative originalists.

Ed Brayton writes:

[O]ne of the major problems for conservative originalists is that they often get stuck having to defend the heinous results that their version of originalism would lead to if applied consistently. This is because the same arguments that they typically use against rulings that push out the limits of individual rights today were also used against rulings that no one considers controversial today and that they do not wish to defend.

For example, the arguments against gay marriage today are almost word-for-word identical to the arguments against the Loving decision that overturned state laws against interracial marriage. So you find them often trying to draw a principled distinction between such cases and trying to come up with an originalist rationale that would have upheld the results in the older case, but not the results in the newer case.

Ed Brayton cites (and agrees with) the Jon Rowe who argues that we should focus on the principles behind the constitutional text, not the actions of those who wrote the text, because the people who wrote the text don't always fully appreciate — or live up to — the principles they have articulated. Why should we be restricted by their limitations? Even those responsible for the Bill of Rights were unable to live up to the principles of the First Amendment and freedom of the press.

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• Gay Rights, Gay Marriage