Home > Current, Discourse, Law, Legal > Proposition Hate: A Question of Origins

Proposition Hate: A Question of Origins

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. From the transcript (with nonmaterial edits for clarity):

MR. COOPER: The concern is that redefining marriage as a genderless institution will sever its abiding connection to its historic traditional procreative purposes, and it will refocus,refocus the purpose of marriage and the definition of marriage away from the raising of children and to the emotional needs and desires of adults, of adult couples.

JUSTICE KAGAN: Well, suppose a State said, Mr. Cooper, suppose a State said that, because we think that the focus of marriage really should be on procreation, we are not going to give marriage licenses anymore to any couple where both people are over the age of 55. Would that be constitutional?

MR. COOPER: No, Your Honor, it would not be constitutional.

JUSTICE KAGAN: Because that’s the same State interest, I would think, you know. If you are over the age of 55, you don’t help us serve the Government’s interest in regulating procreation through marriage. So why is that different?

MR. COOPER: Your Honor, even with respect to couples over the age of 55, it is very rare that both couples — both parties to the couple are infertile, and the traditional -­-


JUSTICE KAGAN: No, really, because if the couple — I can just assure you, if both the woman and the man are over the age of 55, there are not a lot of children coming out of that marriage.


(Again, the full transcript is available here.)

The Proposition 8 defenders often resort to the natural procreation defense of the traditional definition of marriage. It is difficult to understand why they do this, though, as a tactical matter. On one hand, it is tempting because the argument points out an uncontestable biological absolute. As a legal argument, though, it is so readily attacked by hypotheticals like Kagan’s that one is left wondering it is as valuable a defensive position as it initially appears.

Categories: Current, Discourse, Law, Legal
  1. AD
    March 29, 2013 at 4:34 pm

    Dean Erwin Chemerinsky offered his reaction to Hollingsworth v. Perry at SCOTUSblog yesterday, and he concluded with the following two paragraphs:

    “The silliest question in two days of arguments came from Justice Scalia, when he asked Ted Olson when laws prohibiting marriage equality became unconstitutional? The same could be asked as to when laws prohibiting interracial marriage became unconstitutional? When did laws requiring segregation of the races in public schools become unconstitutional? When did laws preventing women from being laws [sic] become unconstitutional?

    “The issue in every constitutional case is whether when the case is before the Court the government action is unconstitutional. Perhaps the most literal answer to Justice Scalia is that laws prohibiting marriage equality will become unconstitutional when the Court issues its rulings saying so. And that hopefully will be very soon.”

    His full analysis is here: http://www.scotusblog.com/2013/03/commentary-what-might-happen/.

    For the reasons stated in the main post, above, I agree that Justice Scalia’s question doesn’t make a great amount of sense. I would break with Chemerinsky, though, when he writes in the second quoted paragraph that “the laws prohibiting marriage equality will become unconstitutional when the Court issues its rulings saying so.” My view is that when the Supreme Court issues a decision protecting a claimed right, the Court’s decision should be understood as an announcement that the claimed right always has existed, not merely that it exists from that point forward (barring, of course, a constitutional amendment).

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