Turning Justice Scalia's Trap Against Him

Oral arguments were held yesterday in Hollingsworth v. Perry, the Supreme Court case dealing with the constitutionality of California’s Proposition 8, which banned gay marriage in the state. Following that, there has been a lot of news coverage of one particular exchange between Justice Scalia and the plaintiffs’ attorney Ted Olson.

Scalia: “When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”

Olson: “May I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriage? When did it become unconstitutional to assign children to separate schools?”

Scalia: “It’s an easy question, I think, for that one. At the time that the Equal Protection Clause [part of the Fourteenth Amendment] was adopted. That’s absolutely true. But don’t give me a question to my question.”

[Like many others quoting this exchange, I cleaned up the verbal record slightly; for exact wording see the Hollingsworth v. Perry Transcript.]

Pressed further, Olson eventually replied “There’s no specific date in time. This is an evolutionary cycle,” (an answer sure to sit poorly with Scalia’s supposed “strict constructionist” views). But Olson is wrong, and I think he missed a grand opportunity to use Scalia’s answer against him.

Here’s what Olson should have said:

Justice Scalia, I absolutely agree with you that those laws became unconstitutional when the Fourteenth Amendment was adopted in 1868 — in principle.

In principle, the Equal Protection Clause made it unconstitutional to racially segregate schools. But in practice, racial segregation in schools was only abolished in 1954 when this court took action in Brown v. Board of Education.

In principle, the Equal Protection Clause made it unconstitutional to prohibit interracial marriage. But in practice, laws prohibiting that were only abolished in 1967 when this court took action in Loving v. Virginia.

Again and again, in principle the Equal Protection Clause granted rights that only became reality in practice when this court actively affirmed those rights, when this court told our nation that it had to acknowledge those rights.

So to answer your question: in principle, it became unconstitutional to exclude homosexual couples from marriage when the Fourteenth Amendment was adopted. And now it is time for this court to make this a reality in practice, to once again insist that our nation acknowledge these universal rights.

I would have loved to hear Scalia’s response to that.