In a new legal memorandum from the Heritage Foundation, Gene Schaerr and Ryan Anderson quote federal judge Jeffrey Sutton: “So far, not a single United States Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the Fourteenth Amendment.” The memo argues that the justices should stick to this precedent, taking on most of the arguments for the contrary position with admirable economy (it’s only ten pages). Its main point is that the Constitution is simply silent on whether the traditional understanding of marriage policy–that it “is about attaching a man and a woman to each other as husband and wife to be father and mother to any children their sexual union may produce”–is the right one. That point is, it seems to me, correct. And it is one that gains force if one considers the original understanding of the equal-protection clause. (I hope that the memo’s repeated references to Dred Scott as another case of judicial activism, which seem to me ill-advised, do not put off some readers who might otherwise be willing to consider its arguments.)