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I’ll tell you when, Justice Scalia

Timothy Kincaid

March 26th, 2013

JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? We don’t prescribe law for the future.

We — we decide what the law is. 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?

Scalia rants as though there is no date, as though this is all arbitrary and subjective and up to some whimsical liberal social ‘living constitution’ interpretation of law. He is mistaken.

There is a date, a specific date, upon which it became unconstitutional under the provisions of the US Constitution to exclude homosexual couples from marriage.

On the day, the very first day, that a same-sex couple decided that they would avail themselves of the equal provisions of their governmental contract and seek the protections afforded by marriage, and on the very first day that this same-sex couple was told that, no, they were excluded – explicitly excluded – from the protections offered by the state because they were an unfavored people, on that specific day, Justice Scolia, the state acted in an unconstitutional manner.

Yes, the Supreme Court of the United States “decides what the law is”. But the wording of our contract – our agreement with the Federal Government that they may govern us and patrol our liberties and, at times, curtail our freedoms when necessary – is not decided by the Supreme Court of the United States. And that wording, that guarantee, allows the Federal Government to serve as our representative government only within certain confines, among which are that all citizens are provided with the same rights.

That provision exists either with or without social recognition. It exists whether or not a Supreme Court “decides” that it is the law.

It is inevitable that some day the Court will recognize – not decide – that gay citizens are equal citizens and that arbitrary animus-based discrimination such as that which Justice Scalia defends is a violation of our national contract. And some day, a Supreme Court will decide that the law is such that discrimination based on sexual orientation is a gross violation of the clear provisions of the US Constitution.

But that will not be the day in which such discrimination becomes unconstitutional. That day has passed.



March 26th, 2013 | LINK

Good post Timothy,

To offer a shorter answer, I think there may be a date when it became unconstitutional to discriminate against homosexuals.


The date the 14th Amendment was ratified. The Cato Institutes amicus brief does a fine job of delineating the broad reach of this amendment; and how attempts to limit its scope failed.

So the 14th doesn’t just cover race, but any minority of disfavored class.

And Scalia does a fine job of demonstrating that disfavor.

Ben in Oakland
March 26th, 2013 | LINK

A great comment, Timothy.

I would argue it was even earlier than that. I’ll pick 1952, when the Supreme Court decided that animus was not a sufficient justification for laws which justify inequality before the law.

March 26th, 2013 | LINK

Excellent response, Timothy

March 26th, 2013 | LINK

And each and EVERY time the Supreme Court ruled that marriage was a FUNDAMENTAL right protected by the constitution.

I believe the number of times is 17. Justice Scalia, which of those 17 decisions are you ready to vacate? Loving v. Virginia since the constitution doesn’t mention mixed race marriage? Or the various decisions protecting the rights of inmates, including those on death row, to marry? I don’t remember the constitution mentioning “inmate marriage” or “serial killer marriage”. In fact I don’t remember anywhere in the constitution where heterosexual marriage is mentioned. So perhaps we should achieve equality by barring ALL marriages not mentioned in the Constitution.

Stop being a douchebag with a Vatican agenda and do your damned JOB!

Ben in Oakland
March 26th, 2013 | LINK

I be,ieve bing a douche is his job, but I could be in error.

Rob Tisinai
March 26th, 2013 | LINK

I have to say you made a serious mistake, Timothy: If I’d been the author, I’d never had posted it as an “aside.”

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