Proposition 8, marriage inequality and Scalia’s dead constitution

by Russell's Rants

Originally published March 27, 2013

During Tuesday’s oral argument before the Supreme Court on Proposition 8, Associate Justice Antonin Scalia really had only one line of questioning that he wanted Ted Olson to answer:

“[W]hen did it become unconstitutional to exclude homosexual couples from marriage?”

3ecd08de8cd2cf8434b362a842232491It was a trick question for Olson, representing plaintiffs who had prevailed in the lower courts in invalidating the voter-approved initiative that prohibited gay marriage in California. Olson knew full-well that Scalia is an originalist whose interpretation of the Constitution starts and stops at the time of the adoption of the clause in question.

Or as Scalia more colorfully put it during a college lecture back in January,

“[The Constitution is] “not a living document. It’s dead, dead, dead.”

Olson had any number of ways he could have responded to the inquiry:

  • In 1776 when the Preamble to the Declaration of Independence held that all men are created equal, endowed with certain unalienable rights, including “Life, Liberty and the pursuit of Happiness;”
  • In 1791 upon the adoption of the Bill of Rights;
  • In 1868 with ratification of the Due Process and Equal Protection Clauses in the Fourteenth Amendment;
  • In 1954 when the Supreme Court in Brown v. Board of Education struck-down “separate but equal” Jim Crow laws as unconstitutional;
  • In 1967 when Loving v. Virginia held anti-miscegenation marriage laws for mix-raced couples were a violation of the Fourteenth Amendment;
  • As late as 2003 in Lawrence v. Texas when the Supreme Court invalidated anti-sodomy laws on the basis of the liberty protected by the substantive component of the Fourteenth Amendment’s due process protections.

a46d1428dae3cc5f02fe39a0eaaec55eOlson started down this path, answering Scalia’s question with his own: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?”

But Scalia continued to insist, “Has it always been unconstitutional?”

Olson finally settled on this answer: “It was [un]constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control. . .” But when pressed for a date certain, Olson conceded that he couldn’t give one as there was “no specific date” in an “evolutionary cycle.”

Without a definitive date, especially one that tracks back to the Revolutionary or Post-Civil War Eras, Scalia believes that he can’t touch Proposition 8.

Here’s the date I would propose for marriage inequality’s unconstitutionality: in about 3 months from now when the Court gets around to ruling on the case before it.

The answer to Scalia’s question is that the U.S. Constitution is not a dead instrument – forever sealed by hopes and fears of the 18th and 19th Century framers of our founding text and its key amendments. We have a Common Law system of justice, based not only upon civil law statutes but interpretation of those laws by the courts as handed down by judges and justices in each generation. We are governed by the doctrine of judicial view that Chief Justice John Marshall enunciated in Marbury v. Madison in 1801 that it is the duty of the courts to “say what the law is.”

If the Constitution were dead, nothing would ever progress. The amendment process incorporated in the founding document expressly envisioned change over time. And judicial review demands it.

If the Constitution were dead, the Court could not have relied upon modern social science in Brown to overrule Plessy v. Ferguson; on modern principles of equality in Loving to overrule Pace v. Alabama (1883); and on evolving social standards in Lawrence to overrule Bowers v. Hardwick (1986).

Scalia himself, in his majority opinion in District of Columbia v. Heller (establishing a heretofore unrecognized individual right to bear arms) looks to what weapons are “typically possessed by law-abiding citizens” to determine which classes of guns might, or might not be, deserving of Second Amendment protection. So evolving standards of gun ownership over the course of 200 years can be used to interpret the constitutionality of gun control laws. If Scalia were truly an “originalist,” he would have stopped at muskets and bayonets that were in common usage at the time the Bill of Rights was passed. Don’t actual human beings who simply want their marriages recognized in law at least deserve equal dignity with guns?

Luckily, if oral argument is any guide, it does not appear that Scalia will be among the majority of at least 5 justices that, sometime around June, will decide what the law of the land on marriage equality actually is.

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