America’s Leading Constitutional Law Scholar Explains His Support for Marriage Equality

Visitors line up in front of the Supreme Court to await rulings on March 31, 2015.

Photo by Yuri Gripas/Reuters

Akhil Reed Amar’s fascinating and surprisingly personal new book The Law of the Land: A Grand Tour of Our Constitutional Republic aims to connect geography with constitutional law, explaining how certain amendments and interpretations sprouted from regional understandings of justice. The book’s finest essay explains how Kansas’ misinterpretation of the 14th Amendment allowed for Jim Crow laws—and how that segregation ultimately led to the Supreme Court’s monumental decision in Brown v. Board of Education.

Toward the end of his Brown essay, Amar briefly compares Kansas’ fight to maintain racial segregation with its current quest to keep same-sex marriage illegal. On Thursday, I spoke with Amar about this bold analogy and his belief in a constitutional right for gay couples to marry.

Why did you decide to analyze same-sex marriage through the lens of Kansas and Brown?

A few things struck me. One, that gay rights are the great civil rights issue of our time. Two, that since Brown, attitudes on civil rights have dramatically changed in America. At the time Brown was decided, it was controversial. Leading academics criticized it. It generated an enormous backlash—the Southern Manifesto. A very powerful array of forces mobilized against the decision. And yet today, everyone accepts Brown. Three, Brown involved the civil rights movement—the defining issue of the ’50s and ’60s. The defining issue of the 2010s is gay rights. Four, Brown, at the time, was controversial and has come to be canonical. And I predict the same thing will be true of gay rights and gay marriage. I predict, 60 years hence, history will be very kind toward Justice Kennedy and very critical of Justice Scalia.

One last point. There are similar geographic patterns in American history. In the 1850s, it’s the slaveholding South and Kansas against the Northeast and California. In 1954, it’s the former Confederacy and Kansas against the Northeast and California. Kansas was on the wrong side of this divide. Now, today, look at a map of who gets it on gay rights and who doesn’t. It’s the same geographical pattern. The forces of liberalism and equality against the forces of hierarchy and tradition. Once again, it’s the coasts against the Southland and the heartland. Folks in Kansas aren’t quite getting it.

How does Justice Anthony Kennedy, the author of United States v. Windsor, play into your comparison?

It’s not a surprise that the one Republican appointee who really gets it on gay rights is from Northern California. Kennedy is a California Republican—halfway between Ronald Reagan and Earl Warren. When Kennedy was growing up in Sacramento, Earl Warren was a regular visitor in his household. When he was a young boy, who was his idol? Well, maybe a parish priest—he was a good altar boy. But after that, the governor of California, Earl Warren.

Now, who authors Brown? Earl Warren. And like Warren, Tony Kennedy is the leader of this court in certain ways. He defines its general contours. He grew up in the shadow of Earl Warren, and Earl Warren writes Brown. That’s Kennedy’s identity and his narrative. He is very much influenced by Earl Warren.

Do you think an original understanding of the 14th Amendment mandates a constitutional right for gay people to marry?

The central idea of the 14th Amendment is the first sentence. Everyone born in America is a citizen. Everyone born in America is born a full and equal citizen. We are all born equal. We are all created equal. This is the 14th Amendment’s articulation of Lincoln’s reinterpretation of the Declaration of Independence. That’s the core idea—an Enlightenment idea. Martin Luther King had the same idea: We should be judged not by the conditions of our birth but by what we make of ourselves.

So, what does it mean to be born equal? It means, at its core, that government shouldn’t discriminate against some people because they’re born a certain way. The framers of the 14th Amendment could have said “race.” But they did not. The amendment goes beyond that. So what does it cover other than race? People are born male or female. The government shouldn’t hold that against someone. People are born in wedlock or out of wedlock. The government shouldn’t discriminate against you because you’re “illegitimate.” One brother is born first, the other is born second. The law should never give the firstborn more inheritance rights just because he’s born first.

Sexual orientation is connected to birth status and identity. If you believe, as I do, that people are born with a sexual orientation, then you believe that government should not be in the business of discriminating against you because you happen to be born gay rather than straight. This is a deep idea I’ve tried to root in the amendment’s central language. The key word is born. That codifies a profound vision of birth equality. Jefferson said it, but he didn’t quite mean it. Lincoln reinterprets it. When he dies, Lincoln’s interpretation of Jefferson is codified in the 14th Amendment.  A new birth of freedom, conceived in liberty.

We didn’t live up to this idea for a very long time. We began to in Brown, thanks to Earl Warren. Kennedy will continue that, this term, in the marriage cases.

So, in a sense, you do think an originalist reading of the 14th Amendment should protect marriage equality.

I am all about taking seriously, in a very deep way, what it means to be created equal. Black or white, male or female, Jew or gentile, in wedlock or out of wedlock, first- or thirdborn—and created equal, gay or straight. That’s my effort. I don’t care whether we call that original intent or not. I care that I’m being faithful to the constitutional project. 

This interview has been lightly edited and condensed.