Professors debate constitutionality of marriage laws

The appropriate role of our Constitution in contemporary legal questions of moral significance is hotly contested in politics today but carries weight for issues from healthcare to gay marriage. Alexander Tsesis, law professor at Loyola University of Chicago, and Thomas G. West, political science professor at Hillsdale College, gave a talk entitled Sex, Morality, and the Constitution on Thursday, January 25. The event, hosted by the Constitutional Studies and Tocqueville Programs, sought to offer competing perspectives on the meaning of marriage in light of changing cultural mores regarding sexual freedom.

After a brief introduction by a Notre Dame student, West launched immediately into his main point, arguing that the Constitution originally did not have much to do with sex and the family. West argued that the Founders regarded such issues as being in the realm of state law. West therefore focused on state policies as a way of deducing the Founders’ original intentions and views regarding marriage, sex, and the family. His analysis ultimately determined that, “the Founders had a view that was so conservative no politician would believe it now.”

This view was that marriage was intended to multiply, preserve, and improve the species. It was important to the state for its ability to produce future citizens. West argues that legal support for marriage was focused on ensuring that a child was supported by both mother and father. Thus adultery was illegal, but enforcement was lax, as only 4% of births occurred out of wedlock.

West continued the discussion by looking at the Founders’ treatment of divorce, noting that it was legalized in every state under grounds of incest, bigamy, adultery, extreme cruelty, absence greater than 3 years, and impotency. Impotence as a reason for divorce reinforces the fact that children were the purpose for the government’s interest in marriage.

West argued that legal realities of the time were shaped by the belief that the natures of men and women created distinct roles for the husband and the wife within marriage. Legally, all property in marriage belonged to the husband, and a married mother and her children had a lifetime legal right to protection from her husband unless she violated the terms of the marriage contract.

Tsesis took issue with West’s originalist interpretation of the nation’s founding documents, particularly West’s proposed understanding of marriage as it was put forth by the framers of the Constitution. Tsesis stated that one of the problems of using the Founders’ intent to resolve current issues is the lack of plasticity it allows for the development of a standard of morality. He emphasized that the roles of constitutionalism are evolving, and that originalist philosophy gives an improper sense of perfection to the constitution, which he termed “an extremely old document written by fallible people.”

Tsesis contended that future generations are instead forced to rely on new instincts. According to Tsesis, history and tradition are guides for constitutional interpretation but should not set the outer limits of what is acceptable. The legal and societal benefits of marriage need to be evaluated with legacy in mind, but should not defined by it.

He remarked, “grounding things in the principles of the Declaration of Independence—pursuit of happiness, life and liberty, general welfare—allows us as a nation to take those roots and to evolve in our interpretation of their thought in a pluralistic way … a way that uses the past as a critical anchor to our understanding, and yet does not also close our eyes to the development of American culture, so that those ideals exist despite the fact that this nation is marred by slavery, sexual inequality, Indian removal and non-white inequality.”

Claire Marie Kuhn is a junior majoring in political science with minors in Peace Studies and Business Economics. She enjoys long afternoon naps and iced green tea lattes. To talk with her over one of those lattes, contact her at