Andrew offers some interesting thoughts about the Equal Protection Clause and gay marriage. He and I had an exchange about a year ago about the Equal Protection Clause in general. That exchange was pretty detailed, and I won't rehash it in full. Suffice it to say that on my view of the Equal Protection Clause, which confines it to literal protection and the right to a remedy, it's easy to dispense with the gay-marriage question for the Equal Protection Clause. The case doesn't rely on anything as slender as the application of anti-surplusage canons to "of the laws," but on historically-well-established meanings expressed by the entire phrase "protection of the laws" (see here at 43-69), especially in the context of a jursdictional limit and the allegiance-for-protection contractual tradition (same article at 34-43). That doesn't end the originalist inquiry regarding gay marriage and the Fourteenth Amendment, though, because equality concerns arise again in the guise of the Privileges or Immunities Clause if the clause bans (as it does: see here at 255-77 and here at 123-158) second-class citizenship.
Andrew says it's possible for most states to be acting unconstitutionally at the time of the framing, but not for all of them–that would be "a bridge too far." For what it's worth, I think it quite implausible indeed that a distinction with the pedigree of traditional limits on marriage–that is, a distinction drawn by every society in history until the Netherlands in 2001–could be unconstitutionally arbitrary, whatever our views about whether those limits ought to be changed now. But in principle, it's possible for all of the framers to be wrong about a fact material to constitutional application. Compare, e.g., the framers' unanimous 1787 guesses about the relative populations of North Carolina and Maryland embodied in the constitutional text of I/2/3 (until the census, Maryland to get 6 representatives, and North Carolina 5) with the reality once the census was taken (Maryland received 8 representatives, and North Carolina 10). For more on this theoretical point, see here at 583-85, making basically the same point as Mike Ramsey's application to the gay-marriage issue here.
Posted at 5:43 AM