Damn that Orin Kerr with his tough questions. Over at Volokh Conspiracy, Orin pulled a little Kingsfield on readers by putting up a poll as to when the right of same-sex couples to marry came into being. Obviously, constitutional rights don’t pop up out of the blue when a judge decides that they exist. It’s the Constitution, not the judge, that gives us rights. The judge merely recognizes the rights that the Constitution creates. Can’t argue with that proposition, right?
The results of the poll showed that 53% of respondents believed that the right of same-sex marriage came into existence in 1868 when the 14th Amendment went into effect or earlier. In other words, the right to same-sex marriage has existed for about 150 years or more, but we just didn’t know it.
Don’t you just hate when that happens? Me too!
That’s when Orin drops the bomb.
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?
Wow. What a great, evil question.
Some of the responses to Orin’s question are, um, curious. It seems there’s a lot of support for the right to duel. Less so for the right to cannibalize the naturally dead. There are a number of people who believe that animals should possess the rights currently given to humans, and strong support for the right to commit suicide. Many of the comments are sarcastic or mocking in tone, but that doesn’t quite change where the mind goes on a question like this.
Very difficult question, Orin. Very difficult indeed.
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But not a new question. Those of us who argue that there are barriers that are best left not coming down plainly ask it. Where will it lead? Who knows?
I don’t think that’s the same thing at all. It’s not just taking argument to their logical extreme, which as you say is a common question, but theoretically existing yet unrecognized rights that might shock us now (as would same-sex marriage to post-civil war America) but will be “discovered” at some time in the future as having always existed.
Oh it is. A “constitutional right” of men to marry men and women to marry women grounded in the doctrine of equal protection would have shocked this country during our lifetimes. Post-WWII. 1980s. 1990s.
The post-civil period is relevant because that was when the amendment was enacted. A gradual slope until recently, 1960s and 1970s. Now a steep slope.
And a terrible thing, too. Just as shocking and terrible as the right of blacks to marry (or go to school with) whites would have been seen by so many of those in 1868 and for nearly 100 years thereafter.
It’s Scalia’s claim in his Lawrence dissent that constitutional rights to bestiality, multiple partner marriage, and incest necessarily follow.
It’s a loaded question, not a slippery slope argument (however deep the slope).
People smarter than me disagree with you. So do I. A slippery slope. Where will it lead? Is Scalia is wrong? Sure about that?
Lawrence would have been better decided on due process not equal protection grounds. Homosexual versus heterosexual sodomy. If the state does not prosecute one, is it unconstitutional to prosecute the other? Yes. If it prosecutes both is it unconstitutional? No.
It’s a terrific — and difficult — question. Not only because of the text, but of the subtext, which is something like and what rights do we, at present, think we have that might go away under a different analysis than is present Constitutional law.
Your blog, your rules, but I don’t want to write something like that without adding that I’m strongly in favor of both governmental and personal recognition of same sex marriages, as I’m pro-family, and think it’s good public policy.
I never would have thought otherwise of a family values type of guy like you.
A loaded question! : ]. Good luck with it. It is entertaining.
Ahhh, the preoccupation in this country about the collateral consequences of tearing-down barriers.
It seems to never end…
Interracial Marriage
Integrated Military Units (in the 1950s)
Abolition of Separate but Equal
Gay Marriage
Gays in the Military
My professional focus lately has been the latter. Luckily, the military did the extraordinarily progressive thing and appointed a commission to evaluate the feasibility of openly homosexual military service.
That’s fantastic. A commission. Those work great to delay things 10 years or so.
So, I say we appoint a commission to evaluate this question. Can’t be too careful.
As we say in one of my trades: all questions are always loaded; always be sure of the direction your question is pointing; don’t hit the Return key unless you’re ready to question; know the subject of your question and the backstop.
That’s true isn’t it?
Good idea. A commission wouldn’t do worse than SCOTUS wading into another swamp. It appears that many black people including primarily black congregations, offended at the analogy with equal protection for their race and interracial marriage, would agree.
If one believes in a constitution of eternally fixed meaning, then the question is quite striking. If however one accepts an evolving interpretation based on current social structures, it’s not nearly so subversive.
But, on the actual question of what rights “are” protected, or will be found to be in the future based on current constitutional provisions…
As a long-time science fiction fan, I have a lot more places where civil rights could be extended, should we encounter them in the future. Alien species, of course. Also artificial intelligences running in computers here on Earth. Also perhaps human consciousness uploaded into computers. Then there are all the questions of “uplifted” organisms — chimpanzees, perhaps, or dolphins, genetically altered to be smarter.
Over on the sex side, always a popular place for trying to limit other people’s lives, there are all the varieties of transexual identity still to be dealt with. Then there is the ever-popular plural marriage (more than two); the main problems with it now are that benefits tie to marriage relationships a lot and that raises the costs, and that some of the people who practice plural marriages do it in ways that are not good for the women involved (for better examples, see the polyamourous community, mostly atheist/secular).
The free exercise and establsment clauses of the first amendment. For one thing. As though it could not be more obvious.
Hard to believe that the freedom to worship may disappear but anything is possible here in the USA.
Some churches worry that they will not be left alone to practice their religion — that they will not be permitted to perform straight marriages if they do not perform gay marriages. This is not a requirement yet but it could happen. Anything is possible here ins the USA. Churches will refuse to compromise. Some gays will live and let live but others are as militant as unions and are likely to hector churches with lawsuits.
And seoondly that this is the Federal goverment establishing securalism as a religion or as an alternative to religion. Our courts have no place, none of them, criticizing dogma — where did I first learn and think about that? Dingdingding! First year! — but it is all over the District Court decision in hostile tones.
What a mess. This will backfire. The Federal courts could have learned from the abortion decisions, more controverted and more untenable every generation, to stay out of social issues disguised as legal issues. They cannot force people to agree on what is morally right. Leave it to the state legislatures. Leave it to referenda. As though it could not be more obvious.
And let church think and practice as they please. Our Bill of Rights are words written on parchment and we know from hard experience what that’s worth.
If however one accepts an evolving interpretation based on current social structures, it’s not nearly so subversive.
I dunno. Maybe it’s moreso — after all, to pick another few areas, that’s where the folks who think that the 2nd Amendment is passe are coming from, as well as some of those who note, correctly, that the First Amendment was not written particularly in contemplation of the intertubes.
Orthogonally, I’ll note that a lot of the folks who are leading the way for the recognition of same-sex marriage are utterly unable to see that proponents of multi-party marriage have many of the same arguments going for them.
Furtherly orthogonally: hi, DDB. Fancy meeting you here, and al.
Hi yourself! I did track through “Jdog” far enough to realize you were somebody I knew.
For the 2A, the fact that it protects double-action revolvers and semi-autos is because of precisely the fact that it’s not precise; it’s general as to what are “arms”. As you’ve noticed over the last couple of years, the court has NOT decided that because lots of people want civilians unarmed, it somehow means that. It can’t reasonably mean that at all; it’s not the slightest bit imprecise in that direction. (Yeah, some people argue it that way still; but lawyers are paid and trained to argue for any position their clients want. It’s not a reasonable interpretation, and it has not in fact prevailed.)
Civil rights are dangerous; once you start granting them, it’s hard to figure out where to stop!
I’d say the 9th amendment of 1791 established this right.
The right to suicide strikes me as a legit contender.
I would think so. In fact, I think that many of the “laws” grounded in the Judeo-Christian ethic/morality that impede individual rights are up for grabs. Not that I think many are necessarily wrong, but merely Puritan based assumptions that other cultures don’t share at all. For example, many issues surrounding sex are particularly open to question.
Yup. Sex. And drugs. Not so much rock and roll.
Are we talking Cream or Grand Funk Railroad?
Depends on your taste, I suppose. Me, I’d rather listen to Bachmann Turner Overweight (the only thing, musically, that the three musicians there had in common is that they were fat) than GFR.
But the Stones, the Stones, how do they do it? I mean, year after year, despite Wilma and Betty.
I’m still struggling with the news that Leslie Gore is gay. I’ve yet to come to grips with Mick Jagger, the bad boy of rock ‘n roll.
One strong candidate for this is the Right to Conscience. I think that, to many, it would be at least surprising, if not shocking, to find out the Constitution protected this right. Surprising to religious conservatives: if they believed this right was protected under the constitution then Bush’s right to conscience rule for healthcare workers would have been unnecessary. Surprising to some liberals as well, since they argue against this rule, saying that it threatens the health and well-being of women and the rights of patients across the country. [Note that in this post I am not arguing for or against the Right to Conscience, I am merely arguing that we may find that this right is protected by the Constitution.]
The Right of [religious] Conscience was explicitly protected in the 1776 Virginia Bill of Rights. It was protected in George Mason’s Master Draft of the Bill of Rights and in James Madison’s 1789 June 8 proposal. The Right of Conscience survived the Amendments Passed by the House of Representatives, August 24, 1789. (In these proposals, the Right of Conscience is included in the clauses about religious freedom, so it is reasonable to assume that the Right of Religious Conscience is implied.) The Right of Conscience was only removed by Amendments Passed by the Senate, September 9, 1789, when the Third and Fourth Articles were merged. I don’t know why the Right of Conscience clause was dropped, but Madison’s (October 17, 1788) letter to Jefferson provides a clue:
“…there is great reason to fear that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are ever likely to be by an assumed power. One of the objections in New England was that the Constitution by prohibiting religious tests, opened a door for Jews Turks & infidels.”
The Supreme Court has upheld some rights of conscience; notably the right of conscientious objection to war, initially on religious grounds but subsequently extended to non-religious grounds. This is interesting because, I believe, the right to conscientious objection was initially upheld under the free exercise of religion clause, but then extended to non-religious grounds, thus almost conjuring up a right out of thin air. Could a similar process grant protection to a general Right to Conscience? That is: a Right to Religious Conscience is derived from the Right to Free Exercise of Religion, and subsequently a secular challenge results in this becoming a general Right to Conscience.
There is a second process for “discovering” protected rights: some aren’t apparent, or readily articulable, until they are invaded. Information privacy, or the former requirement of a warrant for wiretaps, were inconceivable in 1868, but are not unreasonable readings of the 4th and 14th Amendments. The creation of invasive technology led to the discovery of those rights.
I would put that into the category of existing rights applied to new circumstances rather than a new right. But if it included a right to go naked while wiretapping, well…
I believe the right to naked wiretapping is self-evident.
And remarkably unappealing, in most instances.
Surely the right to go naked is just an extension of the existing right to bare arms.