THE BLOG
03/28/2013 08:36 am ET | Updated Feb 02, 2016

A Gay Old, and New, Time at the Supreme Court

When Mark Twain wrote in 1894, "My business and your law practice ought to make a pretty gay team," he was not musing about the sexual orientation of the occupations. To be sure, the law has long been said to be a jealous mistress, and if corporations are people, then perhaps a business too can be a woman. It was not until after the "Gay" Nineties, however, that the adjective took on its current sense.

As the Supreme Court considers a case about the constitutionality of laws prohibiting gay marriage, some insist that because the ratifiers of the Fourteenth Amendment's Equal Protection Clause in 1868 did not see it as a bar to such laws, nor should we today. To the naysayers, anointing sexual orientation as a status worthy of "equal protection of the laws" would be an analytical anachronism tantamount to interpreting Twain as intimating something intimate.

That facile view conflates the disparate interpretive roles of definition and application. As a threshold matter, an interpreter must of course define the terms at issue. For that modest inquiry, the denotation at the time of the writing does indeed control, even when a word has, like Twain's, evolved. Nobody would argue that the constitutional language about foreign invasions and "domestic Violence" concerns spousal abuse. And even if 40 is the new 30, Americans respect the constitutional text ("No Person shall be a Senator who shall not have attained to the Age of thirty Years") enough to recognize the legitimacy of Chris Murphy, the junior senator from Connecticut at age 39.

Having made that mechanical, time-sensitive determination -- the definition of "gay" or "thirty," or in the case before the Court, "equal" and "protection" -- the interpreter proceeds to a judgment call of how the definition applies to the dispute at hand. For example, the Second Amendment's reference to "Arms" undeniably describes weapons rather than limbs, but does an AR-15 or an ICBM qualify? Such taxonomical questions can be hard enough, but issues about whether vague adjectival phrases such as "equal protection" embrace complex human interactions are even thornier.

Opponents of recognizing a constitutional right to gay marriage argue that once a principle is enacted, it forever retains its original unwritten baggage. Exalting that reductionistic approach, Justice Antonin Scalia commented in a recent speech that cases about whether the death penalty violates the Eighth Amendment's prohibition of "cruel and unusual punishments" are "easy," as are those about the constitutionality of abortion bans. Why? "Nobody ever thought the Constitution prevented restrictions on abortion." He then telegraphed his take on the current case: "Homosexual sodomy? Come on. For 200 years, it was criminal in every state."

Sure enough, at the oral argument on Tuesday, Justice Scalia badgered Ted Olson, the attorney for two couples, repeatedly demanding that he identify a precise year when same-sex marriage bans became unconstitutional. Olson sidestepped the loaded question, instead characterizing constitutional law as "an evolutionary cycle." That response predictably left Scalia unsatisfied: "You can't give me a date when the Constitution changes?"

But it is not the Constitution that changes. It is we, the people. When applying an old principle to a modern situation, we need not be hostages of history. Semantic integrity does demand that we respect a word's time-sensitive definition per se, but who is to give content to the flexible terms that are the currency of the Constitution, such as "unreasonable" searches and "due process" of law? Not our forebears. It is one thing to consent, tacitly, to be governed by the document some of them wrote. It is another to submit to their presumed applications of its principles.

Had the Fourteenth Amendment provided that "No State shall ... deny to any heterosexual person ... the equal protection of the laws," then the debate in 2013 would be about amendment rather than interpretation. Instead, the Constitution enshrined a powerfully pure -- but not precise -- principle.

The lasting resonance of ringing foundational tenets flows from such vague simplicity. The Declaration of Independence would be a mere relic had it proclaimed that "all men are created equal, except for men of certain races, and women are not equal at all." In 1776, such qualifiers may have been implicit, but over the years, enduring expressions inspire newly enlightened perspectives. It is now time to interpret "equal protection" in a way that reflects a modern appreciation of equality.

Sir Walter Scott's 19th-century verse announcing that "Prince Robert has wedded a gay ladye" was, like Twain's comment, sexually unremarkable. He surely was not implying that the "ladye" was repressing her orientation. Still, it would be no great surprise if she had in fact been gay in the modern sense; such marriages of "convenience" were once common. Today, more truly convenient marital options exist in many states. After the Supreme Court's ruling, ladyes all across the land may be free to marry princesses.

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