The Right Coast

July 14, 2004
Epstein on Same-Sex Marriage
By Mike Rappaport

Richard Epstein has been one of the strong influences on my intellectual development. To this day, I largely subscribe to much of his libertarian utilitarianism. In Tuesday’s Wall Street Journal, Richard writes a piece attacking the Family Marriage Amendment and suggests that laws forbidding same-sex marriage are unconstitutional, or at least require a strong justification that has not yet been provided.

It is not clear how to interpret Richard’s argument. On the one hand, one might view it as a statement of political principle, as his views as to what the Constitution ought to say. On this ground, I have much sympathy with his arguments, but at this point I support civil unions rather than same-sex marriage largely on grounds of gradualism and the unpredictability of radical change. I also think that these changes are better made through the legislative process.

Richard’s argument, however, also appears to be a claim that our Constitution should be interpreted in the way he suggests. If that is his argument, I must part company and ask: where is the evidence? The relevant constitutional provisions were enacted in 1789-1791 and in 1868, and nowhere in his op ed piece is there any evidence that it has the meaning he suggests.

Richard may be appealing to arguments that claim that the Framers were adopting natural rights views, and these natural rights are subject to reinterpretation over time as understandings change. But if he is, I must say that I don’t read the Constitution in that way, and nothing he says here even addresses the argument.

Update: Over at Stephen Bainbridge’s site, Richard provides the source for his views: He appears to acknowledge that the Privileges and Immunities Clause is the applicable clause and it does not prohibit laws against same-sex marriage. He then claims that courts have interpreted the Equal Protection and Due Process Clauses more broadly and they might be read to cover same-sex marriage. But I hardly find this argument persuasive. Yes, the Court’s can make up the meaning of Equal Protection and Due Process so that same-sex marriage is covered, but I hardly see why that is legitimate. What is more, prior to last year’s Lawrence decision, the Courts had not found any real protection for same-sex relationships and therefore one cannot really argue based on judicial doctrine. In the end, I fear, Richard’s argument appears to be that protecting same-sex marriage would be a good thing, and there is enough room within the amorphous constitutional provisions, especially as willfully misinterpreted by the courts, to allow the Court to protect same-sex marriage. Perhaps true, but hardly compelling.