This is the fourth of seven introductory articles on the relevance for constitutional law and the Supreme Court of the “born free and equal” clauses, which appeared in the Declaration of Independence and in six out of 12 state constitutions when the federal Bill of Rights was ratified in 1791, and in 24 out of 37 state constitutions when the 14th Amendment was ratified in 1868. The “born free and equal” clause of the Massachusetts Constitution of 1780, for example, provided that:
Article I. All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.
In my initial articles, I showed that the “born free and equal” idea is deeply rooted in American history and tradition as that phrase is used in such correctly decided cases as Washington v. Glucksberg (rejecting a right to assisted suicide), McDonald v. City of Chicago (recognizing that the Second Amendment’s right to own a handgun for self-protection extends to the states), and Dobbs v. Jackson Women’s Health Organization (overturning Roe v. Wade). In the second article, I showed that while the 14th Amendment does not give birth to a so-called “right to privacy,” it does through the privileges or immunities clause constitutionalize the “born free and equal” clauses, subject to rational basis review, which justifies the outcome, although not the opinions in 1965’s Griswold v. Connecticut (holding that states may not criminalize the use of contraceptives by married couples) and in 2003’s Lawrence v. Texas (holding that states may not criminalize same-sex “sodomy”).
In this fourth article, I want to examine the application of the “born free and equal” clauses to yet another famous “right to privacy” case: 2015’s decision in Obergefell v. Hodges, finding a national constitutional right to same-sex civil marriages. Prior to Obergefell, same-sex marriage had already become the law in 36 states plus the District of Columbia, and the trend was unequivocally in the direction of same-sex marriage. That is nearly an Article V consensus of three-quarters of the states, which is the number it takes to amend the Constitution. (The passage of the Respect for Marriage Act in 2022 also codified protection for same-sex marriages as a matter of federal statutory law.)
Revisiting Obergefell is especially timely given that this precedent has recently faced considerable criticism from both inside and outside the court and given my own belief that substantive due process, upon which the opinion was based, is an oxymoron (like “green pastel redness,” as put by John Hart Ely). Unlike many fellow conservatives, I nevertheless think that this case was rightly decided.
Before going further, I should make clear that by civil marriage, I mean the government sanctioned marriage right, which carries with it: 1) tax and inheritance law benefits; 2) rights to adopt and raise children; 3) medical care proxies and hospital visitation rights; and 4) all other government-conferred benefits that accompany a marriage license from either the state or federal governments in the United States. I am not addressing the understanding of marriage as a religious sacrament, which is recognized in most of the world’s major faiths. Sacramental marriage is governed by religious rules, which are protected by the free exercise of religion clause of the First Amendment, incorporated against the states by the 14th Amendment.
I first consider arguments from the text of the 14th Amendment and then the original meaning of the words themselves.
The text of the 14th Amendment
Section 1 of the 14th Amendment contains two great commands: 1) the “born equal” command (which is exhaustively documented and defended in Akhil Reed Amar’s Born Equal: Remaking America’s Constitution, 1840-1920); and 2) the “born free” command, which has been the subject of my first three inaugural articles for SCOTUSblog. Both commands are captured by the “born free and equal” clauses, which were not only widely present in state bills of rights in 1791 and in 1868, but which also appear in 37 out of 50 state bills of rights today.
Indeed, the text of section 1 constitutionalizes the “born equal” command in three separate clauses to emphasize just how strong that command really is. The citizenship clause, as affirmed by the court in Trump v. Barbara, makes everyone born or naturalized in the United States an equal citizen. Samuel Johnson’s 1755 dictionary of the English language defines the noun citizen as “[a] freeman of a city; not a foreigner; not a slave;” and (less relevant here) as “[a] townsman; a man of trade; not a gentleman.” Daniel Webster’s 1828 Dictionary of American English gives the word the same meaning. Citizens are born with the same civil rights as are all other citizens, unlike slaves or nobles/gentlemen who are born with lesser or greater rights than a citizen has. The Latin root in “civil right” is the same root as in “citizen.” All persons born in the United States are then equally a citizen with the civil right to marry save a few trivial exceptions – none of which concern sexual orientation.
The privileges or immunities clause of the 14th Amendment also makes all citizens equal by forbidding the “making” of any law that abridges (i.e., “shortens” or “lessens”) the privileges or immunities of one class of citizens (such as free Black people and northerners in the south) as compared to another class of citizens (such as white southerners). The word “abridge” is used here in the same anti-discrimination sense in which it appears in the 15th Amendment, which states: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” The making of an abridged set of rights for one class of people, as compared to another class, is therefore strictly forbidden by both amendments.
Finally, the equal protection clause forbids discrimination in the enforcing of laws. It affirmatively commands state police, prosecutors, and judges, for example, to give to all classes of citizens the same protection of the law from, for instance, the Ku Klux Klan as is received by southern white citizens. Note that the noun in this clause is “protection” and “equal” is only an adjective. The equal protection clause was originally about the affirmative duty of state governments to enforce equally all laws already on the books.
So why does the 14th Amendment command birth equality in three separate clauses? For the same reason an apartment owner locks his front door by pushing in a button on the door handle, and then by throwing a deadbolt, and then by locking a chain. Such an apartment owner obviously wants to make extra sure that no one will break in while he is sleeping.
Although the text of the 14th Amendment thus bans “discrimination” in three clauses, it never says “discrimination on account of what.” For that, we must then turn to the original public meaning of section 1 of the 14th Amendment as understood by the people who framed and ratified it.
Original public meaning
The 14th Amendment bans not only race discrimination but all systems of caste, of aristocracy, and of feudalism, as I have argued elsewhere.
Specifically, the 14th Amendment bans both the Hindu Caste system and European feudalism, in which some people were born into a lower social caste as untouchables or serfs or slaves while others were born into a higher social caste as Brahmins, or Lords, or slave-owners. The framers of the 14th Amendment considered an early draft of that amendment that banned only race discrimination against Black Americans, and they rejected that draft as being too narrow. They wanted the amendment, for example, to also protect the rights of white northerners when they were living in the south. The 14th Amendment therefore does not use the word “race” because it supports a broader ban on all systems of caste.
Even before the 14th Amendment was drafted, abolitionists equated slavery with the Hindu caste system and with European feudalism.
For example, Rep. Farnsworth complained in 1861 that:
As a moral being, as a man, I hate slavery in the States of this Union as I hate serfdom in Russia – which by the way is about to be abolished in that Empire, while we are quarreling over the extension of slavery in this – just as I hate caste in India; just as I hate oppression everywhere.
In the 1866 debates on the passage of the 14th Amendment, Sen. Charles Sumner captured the prevailing sentiment when he said that the problem with the southern Black Codes was that they created a system of caste. Specifically, Sumner argued that under the 14th Amendment, as he understood it:
[T]here shall be no Oligarchy, Aristocracy, Caste, or Monopoly invested with special powers and privileges, and there shall be no denial of rights, civil or political, on account of color or race anywhere within the limits of the United States or the jurisdiction thereof.
The Hindu Caste system, European feudalism, slavery in the United States before 1865, and the southern Black Codes of 1865 all have in common a denial of birthright equality.The common evil of these dystopian forms of rule is that some people are born with either more or with fewer rights than are other people.
LGTBQ+ Citizens
LGTBQ+ citizens are born with the trait of being attracted to sexual and marriage partners of the same sex or of both sexes. It is both unfair and irrational – and thus contrary to the 14th Amendment – to discriminate against citizens based on an immutable trait with which they are born.
Corfield v. Coryell, which I have previously said is the 14th Amendment’s version of the “born free and equal” clauses, stated:
The inquiry is, what are the privileges and immunities of citizens in the several states? … They may … be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole [people].
The ability of two people who are sexual partners to marry, whether they are a heterosexual couple or an LGBTQ+ one, is undoubtedly central to the ability of that couple to “enjoy[] … life and liberty” and “to pursue and obtain happiness and safety.” A state civil marriage law, which allows for heterosexual marriage but denies the right of LGBTQ+ couples to marry does not “justly” limit liberty “for the general good of the whole [people].” It wrongly creates an irrational sexual orientation caste system in which heterosexual couples are Brahmins and LGBTQ+ couples are Untouchables. In other words, laws banning same-sex marriage are as unfair and irrational as would be a law forbidding people who are born left-handed from getting married.
Some, like my esteemed former boss, Justice Antonin Scalia, have countered by saying that the framers of the 14th Amendment would be shocked to see that amendment used to recognize LGBTQ+ civil marriages. He is not wrong. But as I said in my last article for SCOTUSblog, many of the people who voted for the 14th Amendment would be shocked to see it used to mandate integrated public schools or a right to racial intermarriage.
As Judge Robert Bork said in “The Tempting of America: The Political Seduction of the Law,” we are governed by the laws enacted by dead people and not by their unenacted original intentions and expected applications. (This is why original public meaning textualism came to replace the original intent of the framers, at then-Judge Scalia’s urging, in a famous speech given at the Meese Justice Department in June 1986 before President Ronald Reagan nominated him to the Supreme Court.)
Judge Bork also said in “The Tempting of America” that “The world changes in which unchanging values [I would say legal texts] find their application.” In 1868, the freedom of speech and of the press clauses did not yet apply to state laws criminalizing expressive conduct such as flag burning. The ratifiers of the 14th Amendment would have been shocked to learn that state laws banning flag burning were unconstitutional. Yet, in 1989’s Texas v. Johnson, the Supreme Court held that the First Amendment did indeed apply to such laws, a case in which Justice Scalia himself provided the critical fifth vote. Likewise, in 1868, Americans did not yet understand that sexual orientation was determined by birth. Now we do.
Benefits of same-sex civil marriage
The right to marry has been recognized by the Supreme Court to be a fundamental right that is deeply rooted in history and tradition in cases like Loving v. Virginia and Turner v. Safley (an opinion which Justice Scalia joined). Civil marriage laws exist for several reasons, almost all of which apply just as much to an LGBTQ+ couple as to a heterosexual couple that either cannot have children, chooses not to have children, or is too old to have more children.
While I believe that there is a fundamental right to marry, I am also not naïve. I recognize that a great deal of marriages end in divorce. I am also aware that most American heterosexuals have more than one sex partner during their lives – although they are typically monogamous with that one partner for a period. (Hence, the useful phrase “serial monogamy” coined by professor Mary Ann Glendon.) Finally, I recognize that some gay men (and women) who are married live in open marriages and may have more than one sexual partner.
Notwithstanding all of this, there are still big gains to be had by encouraging civil marriage as much as possible, as the Supreme Court ruled in 1978’s Zablocki v. Redhail (holding unconstitutional a Wisconsin law which forbade non-custodial parents after a divorce from remarrying if they were in arrears on their child support).
First, there is a great social benefit to civil marriage in that married couples live longer than their unmarried counterparts – with partners contributing to better physical, mental, and social health. At the risk of making too cute an analogy, marriage is like a “buddy system” at a children’s camp where every camper has one and only one buddy, the main duty of which is to take care of his or her partner. In marriage, a partner is expected to push his or her spouse to seek medical help when necessary, to alleviate loneliness and make life more meaningful, and prevent the other person from acting foolishly. Moreover, studies show that sex with one partner, regardless of frequency, leads to better health.
Second, and relatedly, marriage is associated with less substance abuse, heavy drinking of alcohol, dangerous driving, criminal behavior, and suicide. There are, of course, exceptions to this in that a bad marriage may lead to more risky behavior. But the overall trend is that marriage reduces dangerous risk-taking.
Third, the data is quite clear that married couples are wealthier than are unmarried couples. The Census Bureau has reported stark differences in median net worth among married couples as compared to the unmarried. This is not only of benefit to the couple but to society as a whole because uninherited wealth is acquired by producing something of value to others and then making Pareto-optimal exchanges.
Fourth, marriage allows a couple to delegate tasks to the spouse that best performs them – including such tasks as earning a living, paying the bills, shopping and cooking meals, and maintaining one’s house or apartment.
Finally, a stable marriage helps enormously with raising well-adapted children. LGBTQ+ parents are often better educated, wealthier, and have gone to more trouble to become parents by using fertility treatments than is true of heterosexual parents. Studies show that children with happy same-sex parents fare better than children raised by different sex-couples who are in a bad marriage. And 59% of LGBTQ+ couples under the age of 50 hope to get married someday, which is comparable to the 63% figure for heterosexual couples.
Justice Samuel Alito once pointed out to me in conversation that Samuel Johnson’s and Daniel Webster’s dictionary definition of marriage in 1787 and in 1868 is only the union of one man and one woman for life. He is correct. But Webster’s 1828 Dictionary goes on to say:
marriage is a contract both civil and religious, by which the parties engage to live together in mutual affection and fidelity, till death shall separate them. marriage was instituted by God himself for the purpose of preventing the promiscuous intercourse of the sexes, for promoting domestic felicity, and for securing the maintenance and education of children.
In a world where a large number of marriages end in divorce, and do not last for life, and in which not everyone believes in God, I think the Supreme Court today should differentiate between civil and religious marriages (something Webster’s Dictionary fails to do). My own case for LGBTQ+ marriage is a case for civil and not necessarily religious marriage. As a practicing Episcopalian, I may support LGBTQ+ marriage equality as to religious marriages, but I know that other faiths do not agree.
Conclusion
To summarize, under the “born free and equal” clauses, and under Section 1, in general, of the 14th Amendment as it is informed by Corfield v. Coryell, same-sex couples have a constitutional right to the enormous benefits which civil marriage confers. The right to same-sex marriage can then only be denied to the LGBTQ+ community by a law which is “just” and which benefits “the whole people.” Laws against same sex civil marriage flunk both these tests, just as would a law that banned civil marriage for left-handed people.
The benefits of same-sex civil marriage are so great, and the costs of same-sex promiscuity are so high, that I then find myself in disagreement with fellow conservatives who believe Obergefell’s holding was wrong and argue that it should be overruled.
Recommended Citation: Steven Gow Calabresi, The “born free and equal” clauses and same-sex marriage, SCOTUSblog (Sep. 8, 2026, 10:30 AM), https://www.scotusblog.com/2026/09/the-born-free-and-equal-clauses-and-same-sex-marriage/