Mar 26, 2013

Posted in Uncategorized

When did it become unconstitutional to ban Same-Sex Marriage?

This colloquy between Scalia and Olson will be taken out of context, so here it is in its entirety. There are a few important parts to stress.

JUSTICE SCALIA: You — you’ve led me right 24 into a question I was going to ask. The California 25 Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future.We — we decide what the law is.

“Is.” Present tense. Not future. I think here Scalia makes an important point that I addressed earlier. The Court should not be deciding cases today based on how historians of the future will consider them. I address that point in this post and here.

Here Scalia tries to make an originalist joke, but it misses horribly, and Olson (likely anticipating the question) knocks it into the stratosphere

Scalia: when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? Sometimes — some time after Baker, where we said it didn’t even raise a substantial Federal question? When — when — when did the law become this?

MR. OLSON: When — may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools.

None of these things happened in 1791 or 1868.

JUSTICE SCALIA: It’s an easy question, I think, for that one. At — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. (Laughter.) JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?

MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional —

But, Scalia despite his snark raises an interesting point. When is an act of the government constitutional? Is there a difference between a law “being” unconstitutional, and the government “acting” in an unconstitutional manner.

JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?

This is somewhat reminiscent of Nick Rosenkranz’s “Subjects of the Constitution” theory.

MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it —

JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.


JUSTICE SCALIA: Was it always unconstitutional?

MR. OLSON: It was constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that —

JUSTICE SCALIA: I see. When did that happen? When did that happen?

time. This know how to MR. OLSON: There’s no specific date in is an evolutionary cycle.

JUSTICE SCALIA: Well, how am I supposed to decide a case, then — 

This is only superficially an originalist question. The deeper quandary of when a law becomes unconstitutional is something I have grappled with myself.

Scalia continues that exchange, and Olson notes that the Court has never phrased this question before.

JUSTICE SCALIA: It seems to me you ought to 10 be able to tell me when. Otherwise, I don’t know how to 11 decide the case.

MR. OLSON: I — I submit you’ve never 13 required that before. When you decided that — that 14 individuals — after having decided that separate but 15 equal schools were permissible, a decision by this 16 Court, when you decided that that was unconstitutional, 17 when did that become unconstitutional?

18 JUSTICE SCALIA: 50 years ago, it was okay? 19 MR. OLSON: I — I can’t answer that 20 question, and I don’t think this Court has ever phrased 21 the question in that way. 22 JUSTICE SCALIA: I can’t either. That’s the 23 problem. That’s exactly the problem.

Despite his curmudgeon manners, and horrible vitriol, Nino still makes very good points. I could imagine a Justice with his intellect and, Brennan’s demeanor would have been unstoppable.

Update 1: Orin blogged about this question back in 2010.

Update 2: From the inside scoop on deliberations:

“I’m a strict Originalist, Mr. Cooper, and I’m looking at a 14th Amendment that forbids any state from denying any person equal protection of the law,” Associate Justice Antonin Scalia said. “So, unless we are the most uncivilized society on the face of God’s green earth, I think we can all agree that a gay person is in fact a person. So what I’m saying is, who the fuck are we to tell a person who he or she can get married to? This is dumb. Can we talk about a real case now, please?”

Update 3: I wrote a detailed post breaking down what Scalia really meant by his question here.

Print Friendly
  • David Lawson

    I’m just a layperson, but I wonder why Loving wouldn’t be persuasive. Didn’t Loving recognize that there is a fundamental right to interracial marriage? If so, it must then follow that there is a fundamental right to marry. In that case, how can gay marriage be banned?

    • lolwut

      Because in Loving, the right was fundamental based on it being “fundamental to our very existence and survival.”

      Interracial unions yield children. Same-sex unions don’t.

      Skin color is irrelevant to procreative potential, so interracial couples are similarly situated with respect to propagating the “existence and survival” of the species; whereas same-sex unions that have no procreative potential as a matter of biology aren’t similarly situated.

      Accordingly, Loving is persuasive in the other direction.

      • lolwut

        Moreover — apart from the fact that interracial unions generally yield children and same-sex unions categorically don’t — the Court’s prisoner marriage jurisprudence unravels if we sever marriage from its procreative anchor.

        Turner v. Safley distinguishes Butler v. Wilson on the possibility of “full consummation”: because prisoners sentenced to life imprisonment without parole cannot fully consummate any marital union, such prisoners have no right to marry — unlike prisoners who would see release.

        The Court would have to revisit and fundamentally alter the logic of its marriage cases if it takes the radical step of abandoning Loving’s procreative basis for marriage.

        • lolnut

          Your analysis is misleading at best. First, asserting that there even exists in Loving a “procreative” basis for its decision is suspect. Let me know how many times the words “child,” “children,” or “procreation” actually appear in Loving. Zero.

          Second, your analysis of the prisoner cases is a classic case of trying to pound a square peg into a round hole. In Butler, the New York law declared inmates imprisoned for life “civilly dead,” with no civil rights to exercise whatsoever. While there is some mention of child rearing in the Butler opinion, it is tied to the entirety of the inmate’s inability to perform spousal duties: “prisoners incarcerated for life who cannot be expected to perform the duties and obligations imposed on a husband by the state’s laws relating to marriage, such as, the duty to support wife and children.”

          Turner case is even more untethered to Loving’s “procreative” basis (to the extent one even exists): “First, inmate marriages, like others, are expressions of emotional support and public commitment. These elements are an important and significant aspect of the marital relationship. In addition, many religions recognize marriage as having spiritual significance; for some inmates and their spouses, therefore, the commitment of marriage may be an exercise of religious faith as well as an expression of personal dedication. Third, most inmates eventually will be released by parole or commutation, and therefore most inmate marriages are formed in the expectation that they ultimately will be fully consummated.” Where’s the procreative basis there?

          Nothing about Butler, Turner or Loving falls apart in reversing Prop 8.

          • lolwut

            Except the Loving court associates the “existence and survival” of humanity with marriage by express reference to Skinner v. Oklahoma, which mentions procreation (“Marriage and procreation are fundamental to the very existence and survival of the [human] race.”).

            Marriage wouldn’t be “fundamental” to the “very existence and survival” of humanity if it had nothing whatsoever to do with human reproduction.

            You elide the point and render the Court’s reference incoherent (and inexplicable) by denying context. Your assertion that the basis is suspect is itself suspect.

            Nor is your analysis of Turner and its rationale for distinguishing Butler availing: you quoted the procreative basis yourself. “[M]ost inmate marriages are formed in the expectation that they ultimately will be fully consummated.”

            Butler is different because life in prison without possibility of parole extinguishes the possibility of consummation, and thus, the underlying procreative aspect of marriage:

            “Those aspects of marriage which make it ‘one of the basic civil rights of man,’ Loving v. Virginia, 388 U.S. 1, 12 (1967) — cohabitation, sexual intercourse, and the begetting and raising of children — are unavailable to those in Butler’s situation because of the fact of their incarceration.”

            The distinction turns on life imprisonment and its corollary, the inability to consummate one’s marriage. Penological purpose, without more, is not enough. Otherwise mere punishment suffices to deny marriage rights to all prisoners, even those with the expectation of release, and Turner would be a different result.

            (Incidentally, the Butler court refutes your characterization of Loving as having nothing to do with children.)

            In sum, you falsely claimed that Butler is unmoored from the procreative aspects of marriage (even though Butler explicitly derives its fundamental character from those very aspects), misapprehend the distinguishing logic of Turner (even though you quoted the procreative basis yourself), and contrive to ignore the salient lesson of Loving (which ties marriage to humanity’s propagation, existence, and survival).

            The fabric unravels if we adopt your radical departure from logic.

  • Anonylaw

    Someone remind Nino to ask this question when an assault weapons ban comes before the Court and he has to answer when it became unconstitutional to regulate them because they are in “common use at the time.” Josh, the questions may be interesting, but when they’re only posed to arrive at a results-oriented decision, the asker has stopped being a judge and has instead become just another politician.

    • Anonylaw

      Your Alito post goes to exactly the same point. There is nothing principled about this. It’s sham intellect.

  • Lee_Lucas

    Scalia is correct. There is no “right” to gay marriage in the constitution nor is there anything that requires any of the States to sanction it or license it or recognize it

  • Pingback: When Did Laws Denying Same-Sex Couples Marriage Licenses Become Unconstitutional? |

  • Pingback: DOMA Being Unconstitutional v. Supreme Court Finding DOMA Unconstitutional | Josh Blackman's Blog()