Roll Call: Latest News on Capitol Hill, Congress, Politics and Elections
March 6, 2015

When Did Same-Sex Marriage Bans Become Unconstitutional?

One of the key exchanges during the Supreme Court oral argument in Hollingsworth v. Perry — the case on California’s Proposition 8 — was a question by Justice Antonin Scalia that seemed to fluster Ted Olson, the lawyer arguing that the ban on same-sex marriage violates the Constitution: “when did it become unconstitutional to exclude homosexual couples from marriage?” A number of legal scholars have proposed their own answers.

Ilya Shapiro: “Justice Scalia himself recognized that state racial discrimination of all kinds became unconsitutional when the Fourteenth Amendment was ratified, in 1868 – and not at some time in future when each particular instance of it was found to violate that provision… Which isn’t to say that what the challengers have to prove here that the drafters or ratifiers of the Fourteenth Amendment had gay marriage in mind.  But it does mean that you have to look at what ‘equal protection of the laws’ in 1868 and apply that understanding accordingly.”

Elizabeth Wydra: “While race was obviously at the forefront of the minds of the Amendment’s drafters–after all, they had just secured an amendment banning slavery in the wake of a brutal civil war–they specifically chose language that would protect against unequal treatment based on more than just racial discrimination, and in fact affirmatively rejected narrower proposals that would prohibit only racial discrimination… It may have taken us 100 years to get it right with respect to race-restrictions on the freedom to marry, but it doesn’t mean those laws weren’t unconstitutional in 1868. The same is true, nearly 150 years after the ratification of the Fourteenth Amendment, for laws that deny gay and lesbian couples the freedom to marry.”

Mike Dorf: “So all that Justice Scalia can really mean when he says that equal protection forbade anti-miscegenation laws and de jure segregation from 1868 on is that the framers and ratifiers of the Fourteenth Amendment adopted a broad principle of equality and that this principle has all along imposed an obligation of equal treatment… But if so, then the same is true with respect to same-sex marriage.  From the very beginning, the equal protection clause meant that people had to be afforded equal access to fundamental rights and could not be divided into classes of citizens.  It’s only very recently that we have realized that this principle entails the invalidation of laws barring same-sex marriage.”

  • mike moran

    When did banning gay marriage become constitutional?

  • askbillmitchell

    When did hetrosexual marriage became constitutional? Yes you could use the religious argument but if that’s the only thing that’s the only argument then the government shouldn’t be concerned with a Universal Unitarian lay paster joining a gay couple.

    • KKeys

      The government isn’t concerned with a Universal Unitarian lay pastor joining a gay couple – or any rites of any religious groups. This is about the legal institution of marriage.

  • MrBeale

    Decades ago. We just didn’t recognize that until recently.


    The arguments of the legal scholars are quite interesting, however they address marriage as a legal institution, not a cultural, religious and social institution. Marriage has existed since before any current governments in the world, perhaps before any government at all. It is a cultural, religious and social institution. And the Constitution, in the 10th amendment, reserves to the states and to the people all powers not vested in the Federal government.

    That government has adopted marriage as a method of allocating costs and supplying goods and benefits still may not give the Federal government (or its courts) any absolute power to define it, either inclusively or exclusively. Let the society evolve and redefine it, if the logic of non-traditional marriage is so good, and largely keep the central government out of it.

    Before someone complains, personally I am completely indifferent how people arrange and live their lives. But, as Justice Ginsburg has pointed out concerning abortion, the Supreme Court taking an heroic position over very personal and contentious issues does not necessarily end, for once and for ever, an issue; it may only inflame it.

    • Jackson Euler

      you’re wrong from the very beginning of your posts, marriage is ONLY a legal institution. Period. To others it may seem to be a cultural, religious and/or social institution but to the government, “marriage” only means one thing and that is the LEGAL UNION of two people, currently limited to one man and one woman at a time.

      • ASRKC

        To the government (which level, by the way) it may only be a legal institution, but that government likes to subsume many rights and powers is nothing new. Begets a lot of legislation and litigation. And, contrary to your post, not everywhere in this great country is it limited to one man and one woman, even though certain Federal legislation argues so.

        By the by, is it correct to suggest that common law marriage (where recognized by the state) is a legal union or, perhaps more properly, a union which, after the passage of time, becomes legally recognized? There is a subtle difference in these two concepts.

        • KKeys

          But that’s the point – religious groups may indeed define marriage differently, but the gov’t must be consistent to all. I would think that common law marriage is likely an out-dated device, as circuit judges are not the only source for legal documents like marriage licenses in remote counties anymore.

    • KKeys

      It is a legal institution. The phenomenon of attraction and mating is a natural phenomenon, and thus this arrangement has existed in every culture in history – but marriage is a legal term, in every land. Here, we let religions have their own rules, beliefs and definitions without interference, but the legal system must have some way to recognize such unions, and that classification should be applied to all couples and all citizens equally, even with the same name – otherwise a second class citizenry is officially created.

  • Lorehead

    Special Relativity can be mathematically derived from Maxwell’s Laws: they work in every frame of reference, yet the speed of light is a constant. No one before Albert Einstein realized the full implications of this, which are very counterintuitive and far-reaching.

  • prius04

    When did a black man become 5/5ths of
    a person? If the answer is the 15th amendment then your answer
    indicates that you still believe that black men are inferior.

    Thus: If white men get their inalienable rights from their creator,
    yet black men only get their rights from the 15th amendment and NOT FROM
    THEIR CREATOR, then you are saying that black men are fundamentally

    Granted, the 15th amendment was required to codify this concept into
    law back in the 1800s, but nowadays do we need this amendment? Are
    there actually people out there who feel that only because of this
    amendment are non whites entitled to full humanhood? Full citizenship?

    So again, when did a black man become 5/5ths of a person. I’d say it
    happened in 1776 we were just too ignorant a people to realize it. So
    too with gay marriage.

    Correction: I said it happened in 1776 but I realized this is quite
    wrong. It actually happened at the dawn of time, we were just too
    ignorant to accept it.

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