![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
Legal vs Right
So the Supreme Court held oral arguments for the first of two marriage equality cases that they agreed to hear. The complete transcript is here: http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-144a.pdf and it's not that long, since they only allot an hour total.
Scalia asked Olson, the lawyer representing the pro-equality side:
JUSTICE SCALIA: 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?
MR. OLSON: When -- may I answer this in the
form of a rhetorical question? When did it become
unconstitutional to prohibit interracial marriages?
When did it become unconstitutional to assign children
to separate schools.
JUSTICE SCALIA: It's an easy question, I
think, for that one. At -- at the time that the Equal
Protection Clause was adopted. That's absolutely true.
But don't give me a question to my question.
(Laughter.)
JUSTICE SCALIA: When do you think it became
unconstitutional? Has it always been unconstitutional?
And I'm afraid Olson didn't give a very courageous response. Well, it's hard to come up with the right arguments on the spur of the moment. Here's what I wish he would have said:
Constitutional law is a proxy for Good. When we recognize that it is not Good, or that our interpretation of it is not Good, we must change the Constitution or our interpretation. Equal rights to marriage has always been Good, but we have not recognized that. The Supreme Court's job is to act as the Justices best understand their duty to establish those interpretations. So, it has always been unconstitutional to deny marriage equality, but it is now the time to formally recognize it.
Scalia asked Olson, the lawyer representing the pro-equality side:
JUSTICE SCALIA: 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?
MR. OLSON: When -- may I answer this in the
form of a rhetorical question? When did it become
unconstitutional to prohibit interracial marriages?
When did it become unconstitutional to assign children
to separate schools.
JUSTICE SCALIA: It's an easy question, I
think, for that one. At -- at the time that the Equal
Protection Clause was adopted. That's absolutely true.
But don't give me a question to my question.
(Laughter.)
JUSTICE SCALIA: When do you think it became
unconstitutional? Has it always been unconstitutional?
And I'm afraid Olson didn't give a very courageous response. Well, it's hard to come up with the right arguments on the spur of the moment. Here's what I wish he would have said:
Constitutional law is a proxy for Good. When we recognize that it is not Good, or that our interpretation of it is not Good, we must change the Constitution or our interpretation. Equal rights to marriage has always been Good, but we have not recognized that. The Supreme Court's job is to act as the Justices best understand their duty to establish those interpretations. So, it has always been unconstitutional to deny marriage equality, but it is now the time to formally recognize it.
no subject
It isn't the Constitution that has changed, it is our understanding of equality.
no subject
I fully admit here that I haven't read the Constitution in full. But my memory of it is that it is all about things that the government can or cannot do (make treaties, commerce, powers of the President, etc.)
Does the Constitution actually state that "marriage is a union between a man and a woman"? Because I would be quite surprised if it did.
Therefore, I don't think the Constitution says that "homosexual couples are excluded from marriage." So that statement is - I think - neither Constitutional nor UN-Constitutional, any more than the statement "You must walk your dog every day" is.
(I wholly support the right of anyone who wants to to marry to do so. I was just interested in this phrasing.)
no subject
"no state shall ... deny to any person within its jurisdiction the equal protection of the laws" and this has previously been ruled to include the Federal government.
The original intent was to cover people of different skin colors.
It has since been interpreted to include many different groups that could otherwise be treated separately by laws. Women, for instance. One of the questions at hand is whether the Defense of Marriage Act, which explicitly restricted federally recognized marriages to male-female couples, violated the Equal Protection Clause. If "homosexuals" are a covered group, then DOMA is illegal (and so are all state laws that restrict them differently from an equivalent heterosexual couple).
If they are not a covered group, then legal discrimination against them is allowed by the Constitution.