Columbia University Law Professor Michael Dorf uses the Dumbledore flap as a teachable moment:
These principles may seem obvious enough when considering the relation of a fiction writer’s intentions to her text, but they are highly contentious when it comes to legal documents. In the balance of this column, I will explain why James Madison is no more of an authority on the meaning of the U.S. Constitution, than J.K. Rowling is on Dumbledore’s sexual orientation.
Interesting! I recommend the remainder of this fairly short essay. Here’s the conclusion:
But now we must ask a further question: In tacitly consenting to the Constitution, do contemporary Americans accept the Constitution as they understand it, or as a small fraction of the white male population understood it 218 years ago? As I noted in a 2002 column, most Americans have only a vague idea of what the Constitution even says. How likely is it that they accept the original public meaning of the text they barely know?
If these considerations render all forms of originalism problematic, they do not point clearly towards any particular method of constitutional interpretation. One could think that the Constitution’s meaning evolves with changing public mores but still worry that judges are not best situated to express those evolving mores.
In other words, even if some of Us the People think that the Fourteenth Amendment’s Equal Protection Clause is best read in 2007 to permit Dumbledore to marry whomever he chooses, regardless of sex, the Supreme Court might nonetheless decide not to recognize his right to do so until it sees a clearer social consensus on the point. The one thing the Court should not say, however, is that Dumbledore cannot marry a man in 2007 simply because same-sex marriage was not allowed in 1868, when the Fourteenth Amendment was ratified.