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    :: 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?
    MR. OLSON: 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 the time that the Equal
    Protection Clause was adopted. That's absolutely true. But don't give me a question to my question.
    JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been
    MR. OLSON: 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 not when it became unconstitutional. That's when they acted in an unconstitutional manner [according to your argument]. When did it become unconstitutional to prohibit
    gays from marrying?
    MR. OLSON: 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 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.

    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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