Several of the Obergefell briefs touch briefly on sources relevant to the original meaning of the Fourteenth Amendment, but the most extensive treatment is probably the brief on behalf of the Cato Institute and professors William Eskridge of Yale and Steven Calabresi of Northwestern, co-authored by Eskridge and Ilya Shapiro from Cato. Other than Melissa Saunders's 1997 article (on which the brief itself relies at pp. 8 and 15), the brief is one of the few attempts to ground current equality doctrine on the meaning originally expressed in the language of the Equal Protection Clause, rather than in that of the Privileges or Immunities Clause, as advocated by John Harrison's pathbreaking 1992 article, my articles on the Equal Protection Clause (here and here), and my new book on the Privileges or Immunities Clause.
Much of the evidence of the brief, however, uses the concepts of the Privileges or Immunities Clause ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States")–especially the concepts of "citizens" and special "privileges"–rather than the those of the Equal Protection Clause ("nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws"). Elaboration after the jump.
For instance, the brief at p. 9 cites three important state-constitutional provisions–from Indiana in 1851 and Oregon and Iowa in 1857–which prohibit state legislatures from giving privileges or immunities to some but not all citizens. I wholeheartedly agree that these provisions are important background to the Fourteenth Amendment, but they plainly informed the text of the Privileges or Immunities Clause, not that of the Equal Protection Clause. Indeed, these provisions, along with other parts of the state-constitutional tradition of hostility to special privileges among citizens, most prominently in Massachusetts, form one of the five basic parts of the textual background of the Privileges or Immunities Clause discussed in chapter 2 of my book. (The others are Article IV, Dred Scott, Congress's naturalization power to create new American citizens, and treaties promising rights to new American citizens).
Besides Indiana, Oregon, and Iowa, the other two constitutional provisions the brief cites at p. 9 are not about privileges and immunities, but neither do they support a broad generic-antidiscrimination reading of the Equal Protection Clause. The 1848 Wisconsin Constitution says that "All men are born equally free and independent," but without speaking of equal protection. Ohio's 1851 Constitution says, "All political power is inherent in the people. Government is instituted for their equal protection and benefit…" Nothing about this provision tells us what "equal protection" means; the use of the phrase "equal protection and benefit" certainly does not say that "equal protection" in isolation means "equal benefit." Similarly, Andrew Jackson's 1832 call for government to limit itself to "equal protection," and give benefits to rich and poor alike, cited by the brief at p. 9, does not define "equal protection" in terms of equal benefits. (For my response to Saunders's similar argument from Ohio and Jackson, see here at p. 70.)
Evidence from the Cincinnati Commercial in August 1866, cited at p. 15 of the brief and discussed at more length in Saunders's article, likewise plainly favors an equal-citizenship reading of the Privileges or Immunities Clause, rather than of the Equal Protection Clause. The Commercial condemned "special codes for one class of citizen" and "confer[ring] privileges upon one class [of citizens] that it denies to another." (The Constitutional Accountability Center's brief, here at 19, relies on the same Cincinnati Commercial evidence, adding the Chicago Tribune's August 1866 support for a "declaration that all citizens were entitled to equal rights in this Republic.") Thomas Cooley's 1873 discussion of the Fourteenth Amendment, on which the brief relies at pp. 16-17, likewise restates it as the "fundamental idea" of "the equality of all citizens."
The three pages of William Nelson's 1988 study cited by the brief at p. 15 all present evidence of how the Fourteenth Amendment's general commitment to equality was seen in terms of special privileges and the rights of citizens, not equal protection of the laws. Nelson describes "The Citizens' Rights Tradition" (p. 67) and quotes statements from Yates on "equal rights and privileges" and "fundamental civil rights, which are alike necessary and important to all citizens" (p. 73), and from Raymond on "equality of rights to all citizens of the United States" (p. 79).
Like many others before (see here at 22-23 n.72 and 28-29 n.94), the brief at pp. 14-15 inserts references to the Equal Protection Clause into the introductions of the Fourteenth Amendment by Thaddeus Stevens and Jacob Howard. As I argue at length in my paper, both Stevens and Howard could be taken to be referring to the Privileges or Immunities Clause instead. In addition to internal evidence from 1866, this interpretation makes much better sense of the ways Stevens and Howard discussed the Privileges or Immunities Clause elsewhere. For instance, as I explain in chapter 3 of my book, both Stevens and Howard thought that the Privileges or Immunities Clause, not the Equal Protection Clause, was at stake in pre-Fifteenth-Amendment attempts to give freedmen the vote.
The brief's references to Professor Calabresi's own work are especially puzzling. Those articles generally support Harrison's idea that the Privileges or Immunities Clause, not the Equal Protection Clause, was the vehicle for incorporating the antebellum hostility to class and caste legislation into the Fourteenth Amendment. For instance, at p. 15, the brief states, "In the press coverage and in the state ratifying conventions, there was overwhelming support for the understanding that the meaning of 'equal protection' was the broad rule against class/caste legislation similar to that articulated by Charles Sumner in 1849." The brief at this point cites, in addition to the three pages from Nelson discussed above, pp. 35 to 42 of Calabresi's article with Julia Rickert on sex discrimination. But that discussion does not feature discussion of the language of the Equal Protection Clause. Calabresi and Rickert's evidence refers repeatedly to equality among citizens. See, e.g., p. 34 (Eliot: "discriminating against classes of citizens"), p. 34 n.156 (Saunders quoting Hotchkiss: "discriminate between its citizens and give one class of citizens greater rights than it confers upon another"), p. 39 (Low: "'equality before the law' for all citizens," emphasis in original), p, 41 n.187 (Davis: "put the colored citizens upon the same level with white citizens"). Indeed, at footnote 179 of p. 39, Calabresi himself notes that Low's statement, by referring to the Privileges or Immunities and Due Process Clauses but not to the Equal Protection Clause, was "supportive of John Harrison's Privileges or Immunities theory." These citations certainly do not present "overwhelming" evidence of "the meaning of 'equal protection.'"
Calabresi's other co-authored articles cited in the brief likewise support Harrison over Saunders on the relative relationships of the Privileges or Immunities and Equal Protection Clauses to the anti-class-legislation tradition. 2013's Monopolies and the Constitution, cited in the brief at p. 9, adopts Harrison's view of the Privileges or Immunities Clause, supplemented by traditionally-granted individual rights, at p. 1017 n.197. 2012's Originalism and Loving v. Virginia, cited in the brief at p. 13, does the same at p. 1411 n.65, and at p. 1418 explicitly concludes that the Equal Protection Clause is chiefly about "the protection of laws against violence." Calabresi's 2008 article on state constitutions in 1868, cited in the brief at p. 14, cites several instances of what he and Agudo call "equal protection" provisions, but these provisions speak in terms of special privileges, the rights of citizens, or both–the concepts of the Privileges or Immunities Clause, not Equal Protection. Calabresi and Agudo adopt at p. 97 the same antidiscrimination-plus-tradition view of the Privileges or Immunities Clause as Calabresi's later articles.
Ultimately, as in other important equality cases, little or no attention will likely be paid in Obergefell to the possibility of shifting equality doctrine from the Equal Protection Clause to the Privileges or Immunities Clause. (The Clark-Koppelman-Levinson-Manta-Sheley-Somin amicus brief notes the issue here at 26 n.13 before dismissing it as tangential.) I agree, in fact, with the basic thrust of the first part of the Cato/Eskridge/Calabresi brief that antebellum hostility to class legislation was incorporated into the Fourteenth Amendment and was not limited to race. As I explain in chapter 6 of my book, a shift from Equal Protection to Privileges or Immunities might help motivate replacement of our tripartite tiers-of-scrutiny approach with a single no-arbitrary-distinctions standard, as advocated by Justices Marshall, Stevens, Burger, and Scalia. However, this doctrinal move could be made, or resisted, independently of the result in Obergefell. The big questions in Obergefell concern not the original meaning, but the factual question of whether same-sex relationships are similarly-situated to opposite-sex ones relative to the purposes of the honorific "marriage," and the extent of the deference interpreters owe to past and present consensus and tradition on that factual question. If the Court engages with the Fourteenth Amendment's original meaning, however, I do hope that it takes more care with the Amendment's precise language.
Update (4/1): Larry Solum notes a new co-authored article by Calabresi which apparently, and quite uncharacteristically, fails to note the protection-of-the-laws-focused interpretation of the Equal Protection Clause.
Update (4/3): Solum's Calabresi abstract was, of course, fake, though his commentary on the (Equal) Protection Clause was exactly right. In other news, several important originalist amici–Larry Alexander, Bruce Frohnen, William Kelley, Nelson Lund, Robert Pushaw, Maimon Schwarzchild, Steve Smith, and Lee Strang–respond to the Cato-Eskridge-Calabresi brief here. The brief quite elegantly and directly attacks the distinction between original meaning and original understanding–meaning must be understood–and comments helpfully on how to understand "class legislation." I agree with the brief that traditional marriage limits do not classify with respect to homosexuality, but I think the class-legislation charge with respect to their gender classifications cannot be dismissed quite so quickly. Chapter 6 of my book explains how I would apply the Privileges or Immunities Clause to the sex-discrimination and same-sex-marriage issues.
Posted at 10:19 AM