The Chicago-Kent Constitution Day symposium theme—“When Did It Become Unconstitutional for States to Ban Same Sex Marriage?: Constitutional Interpretation in the 21st Century”—comes from a fascinating exchange during oral arguments between Justice Scalia and attorney Theodore Olson in the same-sex marriage cases last March. Olson was arguing on behalf of a group of plaintiffs from California who were challenging Proposition 8, the ballot initiative by which a slim majority of Californians voted to add a same-sex-marriage prohibition to their state constitution. Olson was urging the Court to issue a broad ruling declaring a constitutional right for same-sex couples to marry, but Justice Scalia was not buying his argument. “When did it become unconstitutional to exclude homosexual couples from marriage?” the Justice asked. “1791 [when the Bill of Rights was adopted]? 1868, when the Fourteenth Amendment was adopted?”
The gist of Scalia’s challenge was clear: The proper way to see if prohibitions on same-sex marriage violated the Fourteenth Amendment’s Equal Protection or Due Process Clauses was to consider whether, at the time of the Amendment’s ratification, these provisions were generally understood to protect the right for same-sex couples to marry. This is the essence of the “original meaning” inquiry to which Scalia subscribes. If the Amendment was not understood to mean this in 1868, it should not be read to mean this in 2013.
Olson responded to Justice Scalia’s question with questions of his own. “When did it become unconstitutional to prohibit interracial marriages?” he asked. “When did it become unconstitutional to assign children to separate schools?” Olson here was referencing two iconic Supreme Court rulings—Loving v. Virginia (1967) and Brown v. Board of Education (1954)—neither of which, he implied, are readily justified on originalist grounds. Scalia dismissed Olson’s questions as “easy.” Prohibitions on interracial marriages and segregated schools became unconstitutional “at the time that the Equal Protection Clause was adopted,” he explained. According to Scalia, Loving and Brown can be justified on originalist grounds (a claim that most, but not all, legal scholars would take issue with). A Court ruling striking down prohibitions on same sex marriage, Scalia implied, cannot be justified on these same grounds.
Justice Scalia’s aggressive line of questioning threw Olson off his stride. He struggled to formulate a response. The best he was able to offer was that these prohibitions on same-sex marriage became unconstitutional “when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control.” Scalia pressed on, demanding an exact date when this happened. “There’s no specific date in time,” Olson responded. “This is an evolutionary cycle.” But Scalia needed his date—“Otherwise, I don’t know how to decide the case.” Scalia did not want to let this point go, leading Olson to protest that the Court had never demanded this when considering new interpretations of the Constitution. “I don’t think this Court has ever phrased the question in that way,” Olson noted. To which Scalia responded: “I can’t either. That’s the problem. That’s exactly the problem.” At this point, Scalia apparently felt he had made his point and Olson, undoubtedly gratefully, allowed the other justices to steer the discussion in other directions.
What to make of this intriguing exchange over when constitutional change occurs? In what way might it be a problem of constitutional interpretation, as Scalia believes it to be? Do we want to measure the validity of methods of constitutional interpretation based on whether they can provide a clear answer to this particular question?
I believe Olson was right in noting that Justice Scalia’s demand was a novel one. The Court regularly overturns or modifies its own constitutional precedents without stopping to provide an exact date when the meaning of the Constitution changed. In Brown, Chief Justice Warren famously referenced the increased importance of education in modern America as a justification for striking down racial segregation in public schools, but he did not offer the year in which education became important enough to demand a new interpretation of the Equal Protection Clause.
The motivation for Justice Scalia’s line of questioning was transparent. He believed that this was a question to which originalists, like himself, have a good answer, but adherents to other methods of constitutional interpretation do not. Those who believe that constitutional meaning can change over time, those who believe in a “living Constitution,” tend to treat constitutional change in gradual, evolutionary terms—terms that are not readily susceptible to the kind of chronological precision Scalia demanded. By reframing the issue in this way, Scalia sought to expose what he sees as a vulnerability of non-originalist methods of constitutional interpretation.
So what would have been Olson’s best response to Scalia’s question? As discussed above, one approach he attempted was to challenge the assumption that this was a question that needed to be answered.
Another approach could have been to identify the judicial precedent that signaled a change in constitutional meaning. This approach would have the advantage of shifting responsibility for constitutional change back on the Court. The novel constitutional claim under this formulation was not so novel. It was simply the logical extension of previous Court rulings. Yale Law Professor Jack Balkin suggested that Olson’s best (if not strategically advisable) response would have been to tell Justice Scalia that the date he was looking for was 2003. This was when Scalia wrote his impassioned dissent in Lawrence v. Texas, the case in which the Supreme Court struck down prohibitions on same-sex sodomy. His dissent derided the Court’s decision as spelling the beginning of the end of prohibitions on same-sex marriage. Justice Kennedy, writing for the Court, disclaimed such a reading of his opinion, and most at the time dismissed Scalia’s warning as overly exuberant hyperbole. But Olson could very well have returned to that dissent and said that Scalia was exactly right all along. I am sure I am not alone in saying that I would love to have seen how Justice Scalia would have responded to this bold, challenging response. If this kind of answer crossed his mind, Olson, a savvy appellate lawyer, was probably wise to hold his fire.
Our guest at tomorrow’s symposium, Ilya Somin, offered his own response to Scalia’s question. Professor Somin’s response is unique in that it accepts Scalia’s originalist premise but not his implied conclusion regarding the constitutionality of same-sex marriage prohibitions. Professor Somin’s approach is based on a recognition that the meaning of a constitutional provision can remain stable even as its application can change in response to society’s changed understanding of the world. As Professor Somin explains, even an originalist can recognize that “laws that are constitutional at Time X can easily be unconstitutional at Time Y if relevant factual circumstances have changed.” With regard to same-sex marriage, what are the relevant factual circumstances? Somin writes:
“For many decades, the state of our knowledge was such that it seemed inconceivable that same-sex couples could raise children, form committed long-term relationships, play a stabilizing role in society, and otherwise carry out the various functions associated with opposite-sex marriages. Today, however, we know that these assumptions are false or at least greatly overstated.”
Professor Somin thus provides an originalist justification for a ruling striking down prohibitions on same-sex marriage.
I’ll post a report on our Constitution Day symposium later in the week. The symposium is cosponsored by Chicago-Kent’s Institute on the Supreme Court of the United States (ISCOTUS), its student chapters of The Federalist Society and the American Constitution Society, and the Chicago-Kent Lambdas.