What Scalia really meant by “When did it become unconstitutional to exclude homosexual couples from marriage?”

March 27th, 2013

Earlier I wrote about Justice Scalia’s question to Ted Olson about when it became unconstitutional. Elizabeth Wydra, Mike Dorf, and Ilya Somin wrote in with various explanations of how bans on same-sex marriage are inconsistent with different types of originalist inquiries about the 14th amendment.

I think all these posts offer interesting analyses, but don’t get to the heart of what Scalia was asking.

Let’s revisit this colloquy. Pay attention to the word “become.”

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 –

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?

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 – 

For once, Scalia is not asking about originalism, or history. He isn’t asking what the 14th Amendment meant in 1868, or how a ban on same-sex marriage would have been understood at that time. If you recall, he wasn’t persuaded in the least by Cato’s amicus in Lawrence arguing that bans on sodomy were inconsistent with originalism (Kennedy cited the brief favorably).

What Scalia is asking is a much more profound question. When did bans on same-sex marriage become unconstitutional. The key word is become.

Olson seemed really flustered by this question. He said that never before had anyone had to answer that question.

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

MR. OLSON: I — I submit you’ve never  required that before. When you decided that — that 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, when did that become unconstitutional?

18 JUSTICE SCALIA: 50 years ago, it was okay?

MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.

JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.

Olson is right. When I first read it, I was stunned because I had never thought of constitutionality in this sense.

What does it mean for a law to be unconstitutional? I’m not looking for “it violates the Constitution.” This is a deeper question. When does a law become unconstitutional? Scalia isn’t really looking for a specific date. Instead, he is looking for an answer of how to decide when the law became no longer valid–that is, when did the law stop being consistent with the constitution. To answer this question, one must answer the antecedent question–what changed to alter the status of the law. That is what he was asking. Nino wasn’t asking what James Madison or John Bingham thought. He was highlighting the fact that the argument Olson was making was based on some sort of popular constitutionalist norms. That is, the people deemed the law unconstitutional. Even Olson’s answer reflect that. He said, ” It was constitutional when we — as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that.” By implication, society no longer feels that way, so the law became unconstitutional.

The best answer I’ve seen to this question is from (none other than) Jack Balkin.

Here is how Jack would’ve answered the question, were he Olson:

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. . . . I’m curious, when -when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .

MR. OLSON: Well, according to your dissent in Lawrence v. Texas, the Court decided that issue in 2003.

That is exactly right. Our constitutional norms have evolved dramatically (dare I say a revolution) in the last decade with respect to gay rights. Ten years ago today, Paul Smith (Donald Verrilli’s former parter at Jenner) argued Lawrence v. Texas. My, how far we have come. The constitutional meaning of equality has evolved in that era. Scalia was trying to pin Olson down on that point with his very specific question. The answer to Scalia’s question is probably at some point between 2003 and the present. Or, if Orin’s post is right (and I think he is), it hasn’t happened yet. We aren’t quite to the point of equality that Olson and Boies thought we were in 2008 when they started this challenge. Olson can’t give that answer, because it would give away the entire game. And Scalia knows that.

Every time I think that Scalia has jumped the shark, and has turned into an over-the-hill curmudgeon who should give it a rest, he surprises me, and reminds me why he has earned the reputation he has. If only his intellect was not so shrouded in vitriol.

Update: This post from Nate Silver may help to answer Justice Scalia’s question. No doubt, the Court’s opinion in Lawrence in 2003 helped to accelerate this change:

What’s clearer is the long-term trend. The chart below documents national polls on same-sex marriage since 1996, as according to PollingReport.com. (It excludes polls that offer a three-way choice between same-sex marriage, civil unions, and no legal recognition for gay and lesbian couples, focusing on those that require a binary choice.) The polls are accompanied by a trendline determined through Loess regression to reflect the change in public opinion over time.


Look at that inflection in 2004!

In the past, we have sometimes considered the possibility that support for same-sex marriage is increasing at a faster rate than before. The data seems to suggest, however, that the increase in support has been reasonably steady since about 2004.

This can be seen by comparing the sensitive Loess trendline to a simple linear trendline, as in the following chart. Before 2004, the lines do not match up all that well, reflecting the slow rate of increase in support for same-sex marriage between 1996 (when 27 percent of Americans said they supported same-sex marriage in a Gallup poll) and 2003 (when 33 percent did on average among 12 polls conducted that year). Same-sex marriage took on a more prominent political role following a Massachusetts court decision to allow it in that state in late 2003, but that produced little immediate effect. An average of 33 percent of Americans said they supported same-sex marriage among 19 polls conducted in 2004, the same as the previous year.

So when will SSM be accepted nationally? Here is Nate Silver’s awesome graph. Let’s hope it’s more accurate than his March Madness and Academy Award projects. Mississipi is last!


. In fact, even if the Supreme Court decision or some other contingency freezes opinion among current voters, support for same-sex marriage would continue to increase based on generational turnover, probably enough that it would narrowly win a national ballot referendum by 2016. It might require a religious revival among the youngest generation of Americans to reverse the trend.

It’s also possible, of course, that the Supreme Court decision could somehow kick-start public support for same-sex marriage, causing it to accelerate faster, or that the recent spate of Democratic and Republican politicians coming out in favor of it could do so. But one no longer needs to make optimistic assumptions to conclude that same-sex marriage supporters will probably soon constitute a national majority. Instead, it’s the steadiness of the trend that makes same-sex marriage virtually unique among all major public policy issues, and which might give its supporters more confidence that the numbers will continue to break their way regardless of what the Supreme Court decides.

This must be what Balkin meant by the Constitution in 2020…

Also relevant is Bill Clinton’s recent decision to come out and say signing DOMA was a mistake. The Times adds this bit.

Rarely has a former president declared that an action he took in office violated the Constitution. But Mr. Clinton’s journey from signing the Defense of Marriage Act to repudiating it mirrors larger changes in society as same-sex marriage has gone from a fringe idea to one with a majority.

“President Clinton has evolved on this issue just like every American has evolved,” said Chad Griffin, who worked as a junior press aide in Mr. Clinton’s White House and now heads the Human Rights Campaign, the nation’s most prominent gay rights organization.

And of course, there was the time in 2004 when Bill Clinton advised John Kerry to oppose same-sex marriage!

“Clinton, Kerry reported at the time, did suggest blunting Bush’s appeal to cultural conservatives with a reprise of Clinton’s Sister Souljah moment in 1992 when he’d denounced her call for violence against whites — and done it as conspicuously as possible in front of Jesse Jackson’s Rainbow Coalition,” Shrum wrote in his 2008 book No Excuses: Concessions of a Serial Campaigner.

“Kerry, Clinton ventured, should consider defying Democratic interest groups by endorsing the Bush proposal for a federal constitutional amendment banning gay marriage.”

Shrum added that it was “this was a flip-flop too far for Kerry.”

A Clinton spokesman denied the reports to the New York Times saying it was “completely false.”

But Shrum stood by the account in an email to BuzzFeed saying “I entirely stand by what I wrote.”

My, how far we have come.