Sotomayor Asks The Question Scalia Posed In His Lawrence Dissent

March 26th, 2013

If same-sex marriage is unconstitutional, what about incest laws?

JUSTICE SOTOMAYOR: Mr. Olson, the bottom 10 line that you’re being asked — and — and it is one 11 that I’m interested in the answer: If you say that 12 marriage is a fundamental right, what State restrictions 13 could ever exist? Meaning, what State restrictions with 14 respect to the number of people, with respect to — that 15 could get married — the incest laws, the mother and 16 child, assuming that they are the age — I can — I can 17 accept that the State has probably an overbearing 18 interest on — on protecting a child until they’re of 19 age to marry, but what’s left?

Again, Olson distinguishes between status and conduct.

20 MR. OLSON: Well, you’ve said — you’ve said 21 in the cases decided by this Court that the polygamy 22 issue, multiple marriages raises questions about 23 exploitation, abuse, patriarchy, issues with respect to 24 taxes, inheritance, child custody, it is an entirely 25 different thing. And if you — if a State prohibits┬ápolygamy, it’s prohibiting conduct. 2 If it prohibits gay and lesbian citizens 3 from getting married, it is prohibiting their exercise 4 of a right based upon their status. It’s selecting them 5 as a class, as you described in the Romer case and as 6 you described in the Lawrence case and in other cases, 7 you’re picking out a group of individuals to deny them 8 the freedom that you’ve said is fundamental, important 9 and vital in this society, and it has status and 10 stature, as you pointed out in the VMI case. There’s 11 a — there’s a different —