Publication

Constitutional Commentary

Volume

31

Page

441

Year

2016

Abstract

This article assesses the debate over “moral reading” and “originalist” approaches to constitutional interpretation by evaluating the momentous constitutional controversy in the United States over access by same-sex couples to civil marriage. Justice Kennedy’s landmark opinion in Obergefell v. Hodges (2015), which held that such couples have a fundamental right to marry, employed a “moral reading” in emphasizing dual forms of evolving understanding: of constitutional guarantees of equality and the “promise of liberty” and of the institution of marriage. By contrast to the dissenters, the majority rejected a static, narrow reading of the fundamental right to marry – and marriage – and stressed the role of “insight” and generational progress. Evolving understanding played a similar role in Goodridge v. Department of Public Health (Mass. 2013), which provided a template for Kennedy’s opinion. This article also demonstrates how the contrasting approaches to interpretation in DeBoer v. Snyder (reversed by Obergefell) previewed Obergefell’s interpretative battle, but with the sides reversed. Some legal scholars criticized DeBoer and offered originalist arguments for same-sex marriage, but those arguments persuaded neither other originalist scholars nor the Obergefell dissenters. The article enlists the “moral reading” approach developed in James E. Fleming’s Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms (2015). Such moral readings have been crucial for making the Fourteenth Amendment less of (in Justice Ginsburg’s words) an “empty cupboard” for gay men and lesbians, just as they have played a role in making it less empty in the context of sex equality.

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