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Lund Files Amicus Brief in Obergefell v. Hodges

Legal scholars of originalism, including University Professor Nelson Lund, filed an amicus brief in the U.S. Supreme Court’s Obergefell v. Hodges, a consolidation of same-sex marriage cases.

The brief, filed in support of the respondents, argues that the distinction between “original understanding” and “original meaning” obscures the historical meaning of the Fourteenth Amendment. “If the provision’s ‘original meaning’ is severed from the ‘understanding’ of the provision held by the people who draft, debate, and enact it, then it becomes wholly unclear what (and where) that disembodied ‘meaning’ even is.”

Second, the brief argues that traditional marriage laws cannot plausibly be understood as class legislation. “If the laws challenged here defined some class of persons (such as gay and lesbian persons) and denied such persons the legal right to marry, these laws might be considered class legislation. But traditional marriage laws do no such thing; under these laws, persons of any sexual orientation are wholly free to marry if they so choose.”

Finally, the brief argues that an interpretive approach at a high level of abstraction never contemplated by its enactors “defeats the goal of permitting ‘We the People,’ acting through our elected representatives in Congress and the state legislatures, to deliberate intelligently and understandingly about proposed constitutional measures, and then to decide whether or not to entrench those measures in our fundamental law.”

Joining Lund are constitutional law professors Lawrence A. Alexander of the University of San Diego, Bruce P. Frohnen of Ohio Northern University, William Kelley of the University of Notre Dame, Robert Pushaw of Pepperdine School of Law, Maimon Schwarzchild of the University of San Diego, Steven D. Smith of the University of San Diego, and Lee J. Strang of the University of Toledo College of Law.

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