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ROBIN ABCARIAN PERSPECTIVE

Prop. 8: Antonin Scalia surprisingly tame in gay marriage hearing

March 27, 2013

Justice Scalia lays a gay marriage trap for Ted Olson.

There was a silly fertility joke about Strom Thurmond, but Scalia Watchers hoping to see the famously acid-tongued justice in action were out of luck Tuesday.

The irascible U.S. Supreme Court Justice Antonin Scalia, who has been outspoken (some think inappropriately so) on the issue of gay marriage, was pretty tame in his comments and questions during arguments about California’s gay marriage ban.

FULL COVERAGE: Same-sex marriage ban

It’s pretty clear Scalia does not find any protection for gays and gay marriage in the country’s essential document.  But there was one exchange with Ted Olson, the conservative attorney who has spent the last few years fighting for gay civil rights, that had me scratching my head. It seemed as if Scalia were laying a trap for Olson, but what was the trap exactly?

I had to call a constitutional law expert to find out. But first, here was what went down in the courtroom, slightly edited for length:

Scalia: I’m curious. When did it become unconstitutional to exclude homosexual couples from marriage? 1791 ? 1868, when the 14th Amendment was adopted? When did the law become this?

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: Don’t give me a question to my question. When do you think it became unconstitutional? Has it always been?

Olson: When the California Supreme Court faced the decision, which it had never faced before: Does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals, is it constitutional?

Scalia: That is not when it became unconstitutional. That's when they acted in an unconstitutional manner. When did it become unconstitutional to prohibit gays from marrying?

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.

Scalia: I'm not talking about the California Supreme Court. I'm talking about your argument. You say it is now unconstitutional. Was it always unconstitutional?

Olson: It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control.

Scalia: I see. When did that happen? When did that happen?

Olson: There's no specific date in time. This is an evolutionary cycle.

Scalia: Well, how am I supposed to know how to decide a case, then, if you can't give me a date when the Constitution changes?

Of course, Scalia’s point, said Douglas NeJaime, an associate professor at Loyola Law School, is that the Constitution never changes. “What’s really happening here, and what they’re not saying explicitly is that in the argument over Constitutional interpretation, Scalia subscribes to the school of thought that says, ‘If we don’t have a textual basis in the Constitution specifically for the right that’s being asked for, then that right doesn’t exist. For Scalia, since we’ve never explicitly protected lesbians and gay men in the Constitution, this is not a Constitutional question.”

Olson, said NeJaime, avoided the trap when he spoke about the “evolutionary cycle.”

“Our idea of what’s constitutional evolves with time,” NeJaime said, “and so we now have come to the consensus that we don’t think it’s OK to discriminate against lesbians and gay men, and our constitutional principles have evolved to embrace that consensus.”

Which, coincidentally, said NeJaime, is the same kind of constitutional interpretation favored by Justice Anthony Kennedy, the presumed swing vote in this case.

NeJaime thinks that the court is not going to rule directly on whether gay marriage is a civil right. He thinks that Kennedy, along with the four liberal justices, will determine that the plaintiffs in the case – a group of individuals who support California Proposition 8—did not have standing to bring the case.

That will have the effect of letting stand the lower court ruling, by U.S. District Court Judge Vaughn Walker, that found Prop. 8 unconstitutional. 

And if that happens, said DeJaime, California Atty. Gen. Kamala Harris will probably start issuing marriage licenses to gay couples. And most legal experts say, the legal wrangling will continue.

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