I have to admit that I have not been closely following the various arguments being put forward in the Prop 8 case that is being argued before the Supreme Court today, but Ed Whelan’s remarks over at NRO struck me as very interesting. I don’t know if I’m just rehashing an old argument when I quote him below, but it was one I had not heard of until this morning.
Do any of you have any thoughts on this line of argument? Have you done any research?
-Here’s an interesting exchange [starting at page 37] between Justice Scalia and Ted Olson, advocate for ‘gay marriage’ [tip of the fedora to William Jacobson for the link to the transcript (PDF)]:
MR. OLSON: The California Supreme Court, like this Supreme Court, decides what the law is. The California Supreme Court decided that the Equal Protection and Due Process Clauses of that California Constitution did not permit excluding gays and lesbians from the right to get married —
JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California 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. I’m curious, when —
3 when did — 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.
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.) 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.
MR. OLSON: Yes.
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?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then —
MR. OLSON: Because the case that’s before Official you —
JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?
MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.
CHIEF JUSTICE ROBERTS: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?
MR. OLSON: I would make — I would make the — also would make the — that distinguishes it in one respect. But also — also — I would also make the argument, Mr. Chief Justice, that we are — this — marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.
JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow civil unions?
MR. OLSON: We do, we submit that. You could write a narrower decision.
JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those —
MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that —
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 equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
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.
MR. OLSON: But what I have before you now, the case that’s before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that — that marriage gives them. It — it is — it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.
When did ‘gay marriage’ become unConstitutional? William Jacobson reminds us that over at Volokh they conducted a reader poll on this back in 2010 and the results are interesting [as are the comments, per usual]. Also check out this other post by
A is A; you can call it B, but is will always and forever be A.
Marriage is something that can only occur between a man and a woman because that is it’s definition.
At one time, long ago, people believed that a man could marry more than one woman. God allowed this for a time until He believed that they were ready to know that Marriage could only be between one man and one woman. As Pope Pius XI explains:
A thing is what it is — to claim it is anything else than what it is, is to deny Reality, to ignore Truth.
It appears to be a mild episode, but, because of his age [eighty-seven], they admitted him for tests, to replace the blood loss, and to make sure it is, indeed Diverticulitis.
tus, preparation; see apparatus.]
