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:: welcome to NINOMANIA:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me :: | |
:: Wednesday, June 19, 2013 ::
What was the most significant part of the oral argument in Perry v. Hollingsworth, the Proposition 8/California same sex marriage case, back last March 26? I think it had to be this: JUSTICE SCALIA: [W[hen 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 did the law become this? And at that point Chief Justice Roberts breaks in. You see what's happened. Olson thought, at first, that he could force Scalia to admit that sometimes the Constitution, you know, just changes, and that the issues of school segregation and miscegenation laws prove this. Scalia was ready, though: perhaps relying on Prof. Michael McConnell's evidence that many members of the Congress that drafted the 14th Amendment did, in fact, believe they were illegalizing racial separation in public schools, Scalia is able to answer "1868" as the date when segregated public schools became illegal. (He asserts the same about miscegenation laws, as to which I'll just say that my own research shows that whether judges thought such laws, where they were in force, violated the 14th Am. or not depended almost entirely on which side of the 1877 line - the end of Reconstruction - you're on. But the courts that disallowed such laws got the issue right under the 14th Am., just as the first Justice Harlan got it right in his lone dissent in Plessy.) Thus Scalia and the racial hypos. And Olson? Can even he claim that many, or any, members of the 14th Amendment Congress believed they were removing sexual complementarity as an element of marriage, as a legal imperative following from equality? Did any of them, a few years later, try to enact a national same-sex marriage bill, as McConnell shows many of them tried to enact a race-neutral school bill? Whereas Scalia can credibly answer "1868" - i.e. the 14th Am. according to a defensible version of its original intent - to Olson's hypos, Olson has to fall back on the notion of "an evolutionary cycle," of which the Supreme Court, not the American democracy, is of course the arbiter. (His back-up argument - that the people of California decided it in their state constitution, as authoritatively and unamendably interpreted by California's judiciary, doesn't even limp to the finishing line, given that California voters' democratic rebuke to their own Court - and the federal, not state, constitutional permissibility of that rebuke - is what is at issue.) Nothing in the above, however, constitutes a prediction of how the case will go. :: David M. Wagner 4:07 PM [+] :: ...
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