Yesterday, the Supreme Court heard arguments in Hollingsworth v. Perry, a challenge to Proposition 8, a California ballot proposition that amended the state’s constitution to restrict the recognition of marriages to those between heterosexual couples.
During oral arguments, Justice Antonin Scalia and Ted Olson, the lawyer representing the Proposition 8 challengers, had the following exchange:
JUSTICE SCALIA: I’m curious, when - when did — when 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 — when — when did the law become this?
MR. OLSON: When — 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 — at the time that the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question. When do you think it became
unconstitutional? Has it always been 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.
(Emphasis added.) The full transcript from yesterday’s oral arguments is available here.
Scalia’s question is deceptively fundamental in nature, and it (surely unintentionally) raises a practical question about his own approach to civil rights. Summarily, his approach is to recognize as protected only those rights clearly shown to be protected within the Constitution’s text or, in some cases, in (very) long-established tradition. For him, unless a claimed right finds clear, preexisting contemplation and protection in the Constitution, the claimed right does not exist.
One practical benefit, at least to Scalia, of this approach is that it is fairly convenient to operate on the back end– that is, the time when a judge is adjudicating a claim of a right violated. Following the alleged violation, the judge simply needs to look to the Constitution to see whether the claimed right is mentioned or clearly contemplated. If not, the claimant does not have a case. If so, the judge proceeds to determine whether there was an infringement of the established right in that particular instance.
Where Scalia’s approach is problematic, though, is on the front end. While principles of democracy and separation of powers properly keep the judiciary out of the legislature’s policy-making business, the historical fallacy of approaches like Scalia’s is that there was a time in the past when policy makers purposely set forth all the rights of the citizenry. Such an exhaustive effort has never been undertaken at the federal level, yet it would appear to be a necessary precondition for Scalia’s approach to make logical sense. If policy makers never set out an exhaustive enumeration of rights, Scalia would have no such source to which to point and state authoritatively that if the claimed right was not included, it did not exist. (Scalia’s inclusion of longstanding history as, along with the Constitution, the other source of rights, conceptually undermines his position, I think, and is a topic best left for another day.)
As I explained at length here, the Constitution’s Bill of Rights is not such a document. Neither its terms nor the intent of its drafters make any claim to exhaustiveness, and the same is true of subsequent constitutional amendments.
Returning to yesterday’s oral arguments, Scalia’s question– “When did it become unconstitutional to exclude homosexual couples from marriage?”– both deeply illustrates his view of civil rights and exposes the flaw in that view. That an asserted right does not appear on a list of rights that neither is nor claims to be an exhaustive list of rights is not a fully sufficient support for the consequential position that the asserted right does not exist. See generally here.
Another moment during yesterday’s argument of interest, if of lesser importance, came during an exchange between Justice Elena Kagan and the attorney for the Proposition 8 defenders, Charles Cooper. Keep reading…