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

March 26th, 2013

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.