How Supreme Court conservatives could support gay marriage: A modest proposal
FORTUNE -- This term, and possibly this month, the U.S. Supreme Court is expected to take up at least one gay-rights case of historic significance. The Court could select one of the eight cases now challenging the constitutionality of the federal Defense of Marriage Act, or it might hear Hollingsworth v. Perry, where the opposing gladiators of Bush v. Gore—Ted Olson and David Boies—have joined forces in an effort to strike down California's Proposition 8, a ballot initiative intended to ban gay marriage.
Although all these cases differ in important ways, there's a common thread linking them all: Is the doctrine known as "originalism" the most sensible way to interpret the Constitution?
In its current, prevailing formulation, that doctrine dictates that the text of the Constitution should be given the objective meaning that it would have had to a reasonably well-informed member of the public at the time of its enactment. (Led by Justice Antonin Scalia, adherents of originalism have largely discarded earlier formulations, which once focused on either the "original intent" of the drafters or the "original understanding" of the ratifiers, due to acknowledged difficulties with divining the subjective mental states of scores of diverse individuals who died a long time ago.)
Originalism is problematic for gay-rights advocates because, in 1868, when the Equal Protection Clause of the Fourteenth Amendment became law, consensual homosexual acts were considered felonies in 32 of 37 states. It is therefore unlikely that the average American in 1868—including most of the state legislators who voted to ratify that amendment—would have understood the words "equal protection of the laws" to include a right to engage in what was then thought of as the crime of "sodomy."
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