Originalism stands as one of the most influential yet contested methods of constitutional interpretation in American law. In debates over same-sex marriage, originalist reasoning has been deployed both to challenge and to defend the recognition of marriage equality as a constitutional right. Understanding how originalism applies—and how its advocates disagree—is essential for grasping the legal landscape that produced decisions like Obergefell v. Hodges (2015) and the continuing litigation surrounding LGBTQ rights.

This article explores the core tenets of originalism, its application to the Fourteenth Amendment’s Due Process and Equal Protection Clauses, the majority and dissenting opinions in Obergefell, and the broader intellectual debate over whether originalism can accommodate evolving understandings of liberty and equality.

Understanding Originalism: Text, Intent, and Public Meaning

Originalism is not a single, monolithic doctrine. It encompasses several related approaches that share a commitment to fixing constitutional meaning at the time of ratification. The two dominant strands are original intent and original public meaning.

Original Intent vs. Original Public Meaning

Original intent originalism seeks to discern the subjective purposes of the framers and ratifiers. Critics note that this approach risks relying on incomplete historical records and conflating the views of a few elites with the understanding of the broader public. Original public meaning originalism, by contrast, examines how a reasonable person at the time of ratification would have understood the constitutional text. This version, championed by Justice Antonin Scalia and scholars like Randy Barnett, avoids some of the pitfalls of intent-based analysis while still anchoring interpretation to a fixed historical moment.

Both approaches share a core premise: the Constitution’s meaning does not change with evolving societal norms. If a right was not originally understood to be protected, judges should not create it through interpretation. This premise directly collides with the reasoning in Obergefell.

Why Originalism Matters for Same-Sex Marriage

The Fourteenth Amendment, ratified in 1868, contains the Due Process Clause (“nor shall any State deprive any person of life, liberty, or property, without due process of law”) and the Equal Protection Clause (“nor deny to any person within its jurisdiction the equal protection of the laws”). Same-sex marriage advocates argue that these clauses guarantee a fundamental right to marry for same-sex couples. Originalists ask: did the ratifiers of the Fourteenth Amendment understand “liberty” or “equal protection” to encompass same-sex marriage? The answer, for most originalists, is no—but that is not the end of the inquiry.

Historical Context: From DOMA to Windsor

The legal battle over same-sex marriage did not begin with Obergefell. It was shaped by decades of litigation, legislation, and shifting public opinion.

The Defense of Marriage Act (1996)

Congress passed DOMA in 1996, defining marriage for federal purposes as the union of one man and one woman. Section 3 of DOMA denied federal recognition to same-sex marriages lawfully performed in states that had legalized them. The act was a direct response to the possibility that Hawaii or other states would recognize same-sex marriages and trigger federal benefits under the Full Faith and Credit Clause.

United States v. Windsor (2013)

In a 5–4 decision, the Supreme Court struck down Section 3 of DOMA as a violation of Fifth Amendment due process principles applied to the federal government. Writing for the majority, Justice Kennedy emphasized that DOMA’s purpose was to “disparage and to injure” same-sex couples, thereby imposing a “stigma” on their relationships. The decision did not mandate that states recognize same-sex marriage, but it set the stage for the next round of litigation.

Originalist critiques of Windsor focused on the absence of any historical evidence that the Fifth Amendment’s liberty guarantee was understood to protect same-sex relationships. Justice Scalia’s dissent accused the majority of inventing a constitutional right that “the people of the United States did not even know was in the Constitution.”

Obergefell v. Hodges: The Landmark Decision

In Obergefell v. Hodges, the Supreme Court held that the Fourteenth Amendment requires all states to license marriages between two people of the same sex and to recognize same-sex marriages lawfully performed in other states. The majority opinion, again written by Justice Kennedy, rested on two pillars: substantive due process and equal protection.

The Majority’s Reasoning

Justice Kennedy identified four “principles and traditions” that demonstrate the fundamental nature of marriage: (1) the right to personal choice regarding marriage is inherent in the concept of individual autonomy; (2) marriage supports a two-person union unlike any other; (3) it safeguards children and families; and (4) it is a keystone of the social order. He then concluded that these principles apply equally to same-sex couples, because “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

The majority also rejected the argument that the definition of marriage must be determined by democratic processes or left to the states, stating that “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

The Originalist Dissents

Chief Justice Roberts, Justice Scalia, Justice Thomas, and Justice Alito each wrote separate dissents. All four adopted originalist reasoning in varying degrees.

Justice Scalia’s dissent was the most pointed. He argued that the Constitution “does not guarantee the right to enter into a same-sex marriage” because “it is entirely unoriginal to read a right to same-sex marriage into the Fourteenth Amendment.” Scalia mocked the majority’s reliance on “liberty” as a free-floating concept, warning that it would “subject the Court to the accusation of a government of men, not laws.”

Justice Thomas’s dissent emphasized that the original meaning of “liberty” in the Due Process Clause was limited to freedom from physical restraint. He argued that the majority had transformed liberty into a “license to define marriage however one sees fit,” a view he traced to the abolition of the common law definition.

Chief Justice Roberts framed his dissent in terms of judicial restraint and the limits of precedent. He noted that “the Court’s accumulation of procreation arguments for same-sex marriage is remarkable given the lack of any evidence that same-sex couples are more likely than opposite-sex couples to bear children.”

Justice Alito argued that the Constitution “does not speak to the issue of same-sex marriage,” and that the question should have been left to the political process. He cautioned that the decision would have far-reaching consequences for religious liberty and free expression.

Can Originalism Accommodate Same-Sex Marriage?

While the dissents in Obergefell are often cited as the definitive originalist position, a growing number of scholars argue that originalism—properly understood—does not foreclose same-sex marriage. These “originalist defenders” of Obergefell rely on several arguments.

The “Equal Protection” Pathway

Some originalists, like Professor Steven Calabresi, argue that the original meaning of the Equal Protection Clause prohibits arbitrary discrimination based on sex. Since classifications based on sexual orientation often correlate with sex, they argue that laws excluding same-sex couples from marriage are a form of sex discrimination. Under this view, the Equal Protection Clause as originally understood would invalidate such laws, even if the framers did not envision same-sex relationships.

The “Fundamental Rights” Pathway

Another argument draws on the original meaning of “liberty.” Professor Randy Barnett, a leading originalist, has argued that the Ninth Amendment, combined with the Privileges or Immunities Clause, protects deeply rooted personal liberties. While Barnett does not fully endorse Obergefell, he has suggested that the right to marry the person of one’s choice may be such a liberty, provided it can be shown to be “deeply rooted in this Nation’s history and tradition”—a test that the majority in Obergefell arguably failed because same-sex marriage was not historically recognized. However, Barnett and others note that the original meaning of “liberty” may be broader than what the framers specifically intended to protect.

Originalism and the “Living Constitution”

A third approach, sometimes called “original methods originalism,” holds that the Constitution’s text incorporates certain standards that evolve as society gains new understanding. For example, the Eighth Amendment’s prohibition on “cruel and unusual punishments” was originally understood to forbid punishments that offend evolving standards of decency. Some originalists argue that the Fourteenth Amendment’s liberty and equality guarantees similarly contain open-textured language intended to be applied to new circumstances. This view disputes the claim that originalism is always static or historically frozen.

Challenges and Critiques of Originalism in the Same-Sex Marriage Debate

Originalism faces significant criticism, both from within the legal community and from advocates of alternative interpretive methods.

The Problem of Historical Evidence

Critics argue that the historical record is often ambiguous. Determining the “original public meaning” of “liberty” or “equal protection” in 1868 is exceedingly difficult. The ratifiers likely had no specific intention regarding same-sex marriage—it was simply not on their radar. Originalists who claim that the Fourteenth Amendment clearly excludes same-sex marriage are making an inference from silence, which is methodologically suspect.

Originalism and Precedent

Originalism is not an all-or-nothing approach. Many originalists accept the role of precedent in stabilizing legal interpretation. For example, Justice Scalia voted to uphold Roe v. Wade under stare decisis even though he believed the decision was wrongly decided. Applied to Obergefell, a committed originalist might acknowledge the decision’s conflict with original meaning but nevertheless accept it as settled law. This tension is a recurring theme in originalist scholarship.

The Possibility of Constitutional Amendments

Originalists often contend that if society wants a right not originally protected, it should amend the Constitution—not rely on judicial reinterpretation. This argument dominated the dissents in Obergefell. Chief Justice Roberts noted that the “supporters of same-sex marriage have achieved great success through the democratic process” and that the Court’s intervention cut short that process.

Opponents of this view point out that the amendment process is extremely difficult (requiring two-thirds of both houses and three-quarters of state legislatures), and that minority rights have historically been protected by the courts even when they lacked popular support. The tension between originalism and minority-rights protection remains unresolved.

Religious Liberty and the Aftermath

Since Obergefell, originalist reasoning has been invoked in subsequent cases involving religious objectors. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission (2018), the Court sidestepped the substantive conflict, ruling instead that the commission had shown hostility toward religion. Originalist arguments have also been pressed in cases involving public accommodation laws and the Free Exercise Clause. The ongoing litigation over the rights of same-sex couples versus the rights of religious objectors continues to test whether originalism can provide consistent answers across different areas of law.

Conclusion: Originalism’s Role in the Future of Marriage Equality

The debate over originalism and same-sex marriage is not merely historical; it has recurring relevance as new questions arise. For example, does the original meaning of the Due Process Clause protect transgender individuals’ right to marry in their affirmed gender? Does the Equal Protection Clause prohibit discrimination based on sexual orientation in areas beyond marriage, such as adoption, employment, or housing? Each of these questions forces originalists to reexamine the original meaning of the Fourteenth Amendment and to confront the limits of their method.

What emerges from the originalist literature is a more nuanced picture than the simple binary of “originalism forbids same-sex marriage” or “originalism permits it.” The method requires careful analysis of text, structure, history, and precedent. As the legal academy continues to refine originalist theory, the status of LGBTQ rights under the Constitution will remain a proving ground for the philosophy’s ability to address modern rights claims without abandoning its foundational commitments. Understanding these debates is essential for anyone seeking to grasp the deeper constitutional principles that animate our most contested legal disputes.

For further reading, consult the Annotated Constitution on the Fourteenth Amendment, Justice Scalia’s dissent in Obergefell, and Randy Barnett’s article on originalism and liberty. Additional perspectives can be found in Steven Calabresi’s analysis of originalism and sex discrimination and Michael McConnell’s essays on original meaning.