Legal Commentary

A Question for Readers Who Think The Constitution Required States to Recognize Same-Sex Marriage Before 1900

By Orin Kerr

This is a follow-up to my post below on the reader polls about attitudes toward same-sex marriage. In the fourth of the four polls, I asked readers who think that the Constitution requires states to recognize same-sex marriage to say when the Constitution began to require it. Slightly more than half the readers who answered that poll answered that the requirement began before the year 1900. 

Here?s a follow-up question, specifically address to readers who did or would answer the poll that way. Here?s the question: What conduct or statuses have not yet been recognized as protected by the Constitution; are in fact presently protected by the Constitution; and would trigger widespread shock among a wide range of the public today if they knew the Constitution protected it?

Here?s why I ask. One of the interesting aspects of saying that the Constitution required states to protect same-sex marriage before 1900 is the implication that the requirement existed back when the idea of same-sex marriage would have seemed utterly shocking. I gather the folks who believe that the same-sex marriage right existed back when it was shocking also believe that there are other rights that presently exist in the Constitution, currently unrecognized, that are as shocking to us today as same-sex marriage would have seemed in the 1700s or 1800s. My question is, what specifically are those other rights? Alternatively, are there no more presently-unrecognized rights in the Constitution ? is the Constitution all tapped out rights-wise? Or perhaps those other rights are there, but we can?t see them yet ? and if so, why can?t we see them?

I realize a lot of readers are going to want to weigh in by asking about related issues and debating the value of or assumptions underlying the question. And I realize this question is addressed to a subset of a subset of readers, as it only asks for responses from those readers who think the Constitution has required states to protect same-sex marriage for well over a century. So here?s a deal: Please limit the responses in this thread to real responses to the question, by those who think the Constitution protected the right before 1900, and I?ll open an open thread below in which readers can have a meta-debate about the question or raise all the other SSM-related topics they like.

UPDATE: To clarify that last paragraph, I am deleting any comments in this thread that do not appear to be good-faith attempts to answer the question. However, I have opened a thread immediately below this post in which readers can take issue with the question and disagree with other commenters. I realize that some readers find it offensive that I have divided the comments into two posts like that (responses above, meta-responses below), but I think it?s the only way to actually make sense of the answers. Thanks.

Full post as published by The Volokh Conspiracy on August 09, 2010 (boomark / email).