Tuesday, March 26, 2013

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.


egarber said...

Isn't Scalia's argument even sillier when you consider the Court changed course between Plessy and Brown? How can the meaning trace directly back to 1868 if the Court itself evolved on the point? He talks like "equal protection" is a procedural rule, like the required age of the president, which of course can be traced back to a clear original meaning.

An another note, the procreation argument is sort of goofy, even beyond its obvious under-inclusiveness implications for opposite sex couples (some people can't have kids).

Even if procreation is a legitimate government interest, does that mean *only* heterosexuals can marry, if marriage is itself a fundamental right? Isn't that like saying this (below)?

"Since furthering democracy is a legitimate state interest, anybody who speaks in a way that doesn't place value on free government isn't afforded First Amendment protection."

Or in a Second Amendment context:

"Since we all have a right to own a gun for self defense, there is no second amendment right to own a gun without ammo -- because only a loaded gun is a weapon."

These examples aren't perfect, but I think they illustrate the kind of arbitrary grasping at play in the SSM debate.

Scott Martin said...

Justice Sotomayor (I believe) tried to get at the same point egarber made above by asking Cooper if he believed that permitting SSM was *harmful* to the state's interest, rather than simply *not furthering* a legitimate state interest. I've made similar arguments in the past, with variable reception, about the orthogonality of SSM to a putative state interest in "responsible procreation."

Sam Rickless said...

I was listening to the oral argument immediately after it was made available, and was surprised when Olson didn't just say "1868" in answer to Justice Scalia's question. Why would that be a problematic answer for any of the Justices, even on the assumption that Olson was motivated by the desire to win them over? At the time, I was thinking that Justice Scalia knows something that I don't know about Olson's commitments in other contexts, commitments that would prevent him from answering "1868" without inconsistency.

I couldn't agree more with your point about originalism bait-and-switch. According to Justice Scalia, the meaning of "cruel" is indexed to the time of framing or ratification: it means "what we consider cruel today" (in 1791). But, so it seems, the meaning of "equal" is not temporally indexed, because, given Justice Scalia's answer to Olson's question about interracial marriage, it does not mean "what we consider equal today" (in 1868). When it suits Justice Scalia to appeal to temporal indexing, he does so. When it doesn't suit him, he doesn't.

EWT said...

It should be acknowledged that the invalidation of race-based limitations is more closely tied to the historical context and common understanding of the 14th Amendment than is a requirement that marriage be offered by the states on equal terms.

Bob Hockett said...

Thanks, Mike,

This is wonderfully cathartic - how I wanted to shout an immediate, if more sound-bitey, reply along these lines the moment Scalia posed the question! On the 'rhetorical rather than theoretical point' observation you make at the end, this seems to me pretty much to sum up Scalia's 'contribution' across the board.

Thanks again,

Joe said...

egarber's point about the strangeness of focusing so much on one aspect of marriage is a good one. Speech, e.g., is not protected for one reason. Censorship is not okay when knowledge is not really advanced by speech. Speech has various purposes. These post hoc reasons tend to have a phony feel.

The OP notes the "historical context" was not just limited -- though it is clearly the strongest case -- the race context just like the 13A is obviously largely a matter of black slavery, but its terms addressed all sorts of slavery and involuntary servitude, including if whites were involved.

Mark McKee said...

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 different.

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.