The reductio ad absurdum of “living constitution” jurisprudence, Part Two

Earlier this week in an uncharacteristically (I hope) conclusory post, I wrote:

The notion that the Fourteenth Amendment to the U.S. Constitution bars the government from adhering to the traditional understanding of what is and is not marriage strikes me as ludicrous. . . . .If an argument that adherence to the traditional understanding of marriage is unconstitutional can be cobbled together from existing Supreme Court jurisprudence, that tells me this jurisprudence is hopelessly misguided, not that there is a constitutional right to gay marriage.

A thoughtful reader responded by asking me to consider the 1967 decision in Loving v. Virginia, where a unanimous Supreme Court invoked the Fourteenth Amendment to overturn a state law barring inter-racial marriage. The reader asked: “Would you consider this case hopelessly misguided or a symbol of judicial activism intolerably run amok?”
The answer is no for at least two reasons. First, the Fourteenth Amendment was part of an assault on racist practices by the government. Thus, there was nothing shocking about a successful challenge to a government practice that, although it applied equally to blacks and whites, was founded on racism.
Second, Loving v. Virginia did not implicate the definition of marriage. The largely regional ban on inter-racial marriages was not founded on the belief that such unions cannot be marriages under the nearly universal understanding of what a marriage is (i.e., between a man and a woman). Rather, the ban was based on the notion that, although it is possible for blacks to be married to whites under that understanding — just as it is possible for blacks to sit on the front of a bus — such marriages represented an undesirable mixing of the races.
The decision in Loving no more changed the definition of marriage than allowing James Meredith (a black) to attend the University of Mississippi changed the definition of “student,” or requiring the lunch counter at Woolworth’s to serve blacks changed the definition of “customer.” But recognizing a marriage between two men (say) changes the definition of “wife” (say).
To me, the notion that a constitutional amendment mandates, sub silento and plainly without intent, such a monumental change in an institution as fundamental as marriage is, as I said, ludicrous.
I do not mean to say that the change itself is ludicrous or even necessarily a bad idea. It just can’t rationally be viewed as imposed by the Fourteenth Amendment under any sound jurisprudence.

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