When Did Same-Sex Marriage Bans Become Unconstitutional?
Posted at 10:15 a.m. on March 29
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.”