In Re Friendzone (Scalia, J., concurring)

February 20th, 2013


As an originalist, even I can see the implications of marriage in our era have changed from when marriage meant someone was strictly “off-limits.” Many marriages today end in divorce, especially marriages where one or both members has a stressful career, like serving on the highest court in the land or being a tax law expert. Under these circumstances, engaging in outings with a member of the opposite sex, such as a romantic evenings at the opera, would cause a rational observer to expect the relationship to progress in a romantic way notwithstanding any spousal complications.

Similarly, many relationships today start in the workplace, especially amongst busy professionals, so the fact that two members of the opposite sex happen to work together cannot defeat the presumption that heterosexual hanging out is a preface to dating. In fact, working together can be conducive to romantic compatibility as it indicates shared interests and experiences, e.g. in adjudicating constitutional disputes. Even where the parties may have a somewhat contentious relationships in the workplace—say one represented NOW and the other thinks constitutional rights should be frozen at a time when women were basically property—such pre-relationship disagreement, as romantic comedies tell us, are indicative of the passion and healthy ability disagree that sustain lasting and meaningful relationships.

Courtesy of the Harvard Law Record. AS <3 RBG.

H/T Lots of people on Twitter.