When Did Laws Banning SSM Become Unconstitutional? What Ted Olson Might Have Said with More Time

By Mike Dorf

During today's oral argument in the Prop 8 case, Justice Scalia asked Ted Olson when it became unconstitutional to exclude same-sex couples from marrying.  Olson initially replied with a couple of questions of his own: when did it become unconstitutional for government to exclude interracial couples from marriage? And when did racially segregated schools become unconstitutional?  Olson thus tried to show that the tacit premise of Justice Scalia's question--that the meaning of a provision of the Constitution is fixed when that provision is adopted--has been properly rejected by the Court's cases.

But Justice Scalia replied that those practices were unconstitutional from 1868, the time when the Fourteenth Amendment was adopted, even though the Court's cases did not recognize it until 1967 (for interracial marriage) or 1954 (for segregation).  Justice Scalia thus dared Olson to say that same-sex marriage has been constitutionally obligatory since 1868 as well.  Olson did not go there but if he had, he would have called Justice Scalia's bluff.

What exactly did Justice Scalia mean when he said that the equal protection clause forbade anti-miscegenation laws and racial segregation all along, even if the Court did not so realize?  He did not--or at least he cannot in good faith--mean that the framers and ratifiers subjectively intended or expected that the Fourteenth Amendment would require legal interracial marriage and integrated public schools (and other facilities) in 1868.  And indeed, in his academic writings, Justice Scalia rejects the "old originalism" of "framers' intent" in favor of the "new" or "semantic" originalism.

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--even though it took the Court (and the nation) decades to understand what that obligation meant in practice.

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.

Put differently, we can see Justice Scalia engaged in what I have elsewhere described as an originalist bait-and-switch.  To reject the rights claims conservatives want to reject, they associate the meaning of the Constitution with the subjective expectations and intentions of the framers and ratifiers--and since, in this instance, we know that Americans circa 1868 were pervasively homophobic, it's preposterous to attribute to them the intention or expectation of requiring same-sex marriage.  Resort to a fixed constitutional meaning serves Justice Scalia's narrow goal here perfectly.  But when non-originalists respond (as Olson quite properly did) that the Court's cases rightly reject this method in other cases, Justice Scalia then shifts his ground, by arguing that those cases are consistent with semantic originalism and ignoring the evidence of the subjective intentions and expectations of the framers and ratifiers (who were, by our standards, quite racist).

It's perfectly understandable that in the context of trying to win over the winnable Justices, Olson did not call Justice Scalia on this move.  But those of us without such time constraints shouldn't be fooled into thinking that Justice Scalia had actually scored more than a rhetorical point.