It's not an unassailable argument. It's just an interpretive approach that puts some limitations on how a judge rules compared to the idea of "I'm just going to make good policy". You can make an originalist argument of why the 2nd amendment does or does not protect an individual right to own guns.
Ah, good, glad to read that.
you can't make an originalist argument of why states must allow same sex marriage.
Since originalism is an interpretive approach, yes, you can. In fact, legal scholars have done so and some filed amicus briefs in Obergerfell using an originalist approach.
Now we're back to one originalist vs another originalist. Who is correct?
well assuming you are using originalist to mean anything connected to the English word original, then the ones trying to make an originalist argument in favor of mandatory recognition of gay marriage by the states is incorrect.
Yeah, pretty sure no one has made that argument anyway. I think the argument that has been made is that if the government gives particular individuals the right to enter into a marriage agreement then the principal of equal treatment under the law requires them to allow all citizens to enter into a marriage agreement. And that interpretation is entirely based off of the original text of the 14th amendment. If you think otherwise could you explain it please, because I still don't seem to understand your argument here.
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And that same interpretation would mean you can't have single sex bathrooms in a government building, and that you can't make section 8 vouchers available t one person without making them available to every person. So I think most people would recognize that the original intent couldn't have been to prohibit the government from making any distinctions between citizens. You could probably come up other different approaches that have merit, but you couldn't come up with an originalist approach that credibly argued that people voting on the 14th amendment intended to legalize gay marriage.
I took a night to think on this, but I still don't think I'm understanding your logic here. So here's how I feel about these two issues, can you please point out were my reasoning is inconsistent with my previous interpretation of the 14th amendment and/or your stated situations?
14th Amendment Interpretation: If the government provides public restrooms to particular individuals then the principal of equal treatment under the law requires them to provide public restrooms for all individuals.
Current Situation: By providing male and female public restrooms the government is providing public restrooms for all individuals.
Just sub out a few words, and you get:
14th Amendment Interpretation: If the government recognizes marriage of particular individuals then the principal of equal treatment under the law requires them to recognize marriage of all individuals.
Current Situation: By recognizing marriage of men to women, and women to men, the government is recognizing marriage of all individuals.
You are making a distinction and claiming that allowing a woman to marry a man when she wants to marry a woman does not satisfy equal protection, but allowing a woman to use a woman's restroom when she wants to use the men's restroom does satisfy equal protection. There's nothing unreasonable about that distinction, but there's not a good argument that it was intended by the people adopting the 14th amendment.
14th Amendment Interpretation: If the government provides section 8 housing vouchers to individuals when they are unable to pay for housing themselves then the principal of equal treatment under the law requires them to provide section 8 housing vouchers to all individuals when they are unable to pay for housing themselves.
Current Situation: The government provides section 8 housing vouchers to all individuals whenever they are unable to pay for housing themselves.
14th Amendment Interpretation: If the government allows individuals who are men to marry women, then the principal of equal treatment under the law requires them to allow all individuals who are men to marry women.
Pre-Oberfell Situation: The government allows all individuals who are men to marry women.
Why do you get to define the relevant class to be "individuals unable to pay for housing" rather than just individuals but states can't define the relevant class to be "individuals who are men" rather than just individuals. If you can just pick your class, then you can always satisfy equal protection. If you can't make any distinction, then you can just about never satisfy equal protection.
So if you are approaching the question from an originalist bent, there are different ways you could go, but you can't credibly use an originalist approach to legalize same sex marraige, because you can't credibly make any argument approximating "people in 1868 intended or wanted the equal protection clause to grant a right to same-sex marriage whenever traditional marriage where ever traditional marriage is recognized".
There is an argument pretty appealing to people on the left of "why should we care what people in 1868 thought about gay marraige, we're more evolved than them, so why should we be bound by their opinion." And the answer of course is we shouldn't, but if we have evolved, we should vote for something different, not vote for presidents and senators who will then appoint and confirm somebody who will not answer any questions about how they will resolve any questions likely to come before the court, and that person will have a lifetime appointment over which he/she will decide which issues we have evolved from and which we have not.
Another way of saying that is, do you really want Trump to appoint somebody that shares his policy preferences and will implement those policy preferences through the courts rather than somebody who will try to interpret and apply the law as the people making the law intended?