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How Ted Olson Should Have Answered Scalia

Justice Scalia put this question to Ted Olson, arguing the case for overturning California’s ban on same-sex marriages, today:

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.)

Andrew Sullivan’s answer [1] is “these forms of discrimination became unconstitutional once the collective consciousness of Americans recognized that the discrimination was unjust,” but Scalia would presumably respond by pointing out that “collective consciousness” is not law. If Olson is arguing his case on equal protection grounds, he should have given Scalia the answer that Scalia gave him: the 14th Amendment. Scalia might then want to see where in the debates over the framing of the 14th Amendment any ban on prohibiting same-sex marriage could be found, but then again, he knows those debates don’t include any express ban on prohibiting interracial marriage, either. The latter case [2] relies on the principle of the 14th Amendment and the civil rights legislation it was intended to enable, rather than on explicit discussion of marriage in the debates.

Aside from such comparisons, the question of how an intended principle may be applied in unimagined ways would still arise. If the 14th Amendment were intended in principle to be as capacious as the court has interpreted it to be over the last half-century, then the principle would apply in this case even if the specific subject matter (same-sex marriage) was something that the framers of the amendment had never considered. That’s exactly what courts are supposed to address: circumstances that do not perfectly fit expectations about whatever law is in question. This would still be an originalist argument, but it would be an originalist argument that said the principle that the framers of the 14th amendment established was more far-reaching than they could have envisioned, something hardly unexampled in the annals of law. No legislature “intends” specific outcomes in unimagined cases, but it can “intend” a general rule. The question is how general, and whether the same degree of generality in this area of law covers same-sex marriage as well as interracial marriage.

If law is the intention of the legislator, there’s obviously a problem whenever intended principles are radical and intended applications are limited.

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45 Comments To "How Ted Olson Should Have Answered Scalia"

#1 Comment By Simon94032 On March 26, 2013 @ 8:53 pm

You seem to be under the illusion that conservatives such as Justice Scalia advocate a standard of original intent in interpreting law. They do not. Scalia has long stood for the traditional, commonsense principle that laws are to be interpreted according to the original public MEANING of the words.

It does not matter what the framers or ratifiers of the 14th Amendment intended — though we can say with a high level of confidence that virtually all of them would have been appalled at the notion of “gay marriage,” if they could even have imagined such a thing.

What matters is the meaning of the duly enacted words themselves, as understood in the 19th century. Allowing a man to marry only a woman does not violate “equal protection” of anyone. That is what marriage is.

The union of a man and a woman in matrimony is an institution that predates the state and is the foundation of human society. Whatever sort of coupling homosexuals desire has nothing to do with that.

#2 Comment By William Burns On March 26, 2013 @ 10:29 pm

OK, Simon: Loving, correctly decided or not?

#3 Comment By Daniel McCarthy On March 26, 2013 @ 10:31 pm

The solution Simon gives would preclude using the 14th Amendment to prohibit bans on interracial marriage. Scalia rejects that, as we can see above. The general problem isn’t whether intent or commonsense meaning is in question, it’s that either intent or meaning can involve contradictions between principles and imagined applications.

#4 Comment By FL Transplant On March 26, 2013 @ 10:45 pm

“It does not matter what the framers or ratifiers of the 14th Amendment intended — though we can say with a high level of confidence that virtually all of them would have been appalled at the notion of “gay marriage,” if they could even have imagined such a thing.”

As well as appalled by women and 18 year olds voting, Senators elected by popular vote, interracial marriage, working for an African-American or a woman, and the bathing suits one sees on a beach today–if they could have even imagined any of these. An argument that freezes in amber the social views held 150 years ago as correct forever is less than convincing.

“The union of a man and a woman in matrimony is an institution that predates the state and is the foundation of human society.”

Prehaps. But I draw a distinction between your views and the contract law that marriage is to the government. I fail to see see where the contract law governing federal tax policy dependence on the state of one’s union, for instance, or Social Security benefits, or eligibility for medical insurance, or property rights “predates the state and is the foundation of human society”.

#5 Comment By R.S. On March 26, 2013 @ 11:37 pm

Well, it doesn’t matter if the writers of the 14th amendment would have been appalled by women voting, by 18 year olds exercising the franchise, or by Senators being exclusively elected by popular vote.

Because all these changes were enacted through subsequent amendments to the constitution.

Proponents of gay marriage, who are typically arrogantly over-confident that history in its glory is on their side, should be happy to pursue the process of amending the constitution. Of course they will do no such thing. Instead they will seek to reanimate the document and pretend that this supposedly living constitution justifies every novelty and moral depravity they can imagine.

#6 Comment By Siarlys Jenkins On March 27, 2013 @ 12:31 am

What is being passed off here as 14th Amendment jurisprudence is incredibly shallow, wishful thinking, almost infinitely elastic.

The entire series of civil rights decisions flowing from the Fourteenth Amendment implemented what was obviously the clear intent of the Amendment, which had been held back by the inertia of both a population and a political class determined not to practice the plain meaning of the amendment. Slavery was unconstitutional from the time the 13th Amendment was ratified — but that was sometimes honored in the breach. Racial discrimination in an almost infinite variety of situations was plainly unconstitutional once the Fourteenth Amendment was ratified — but even the gentlemen making up the Supreme Court were most anxious to tip-toe around it for the first hundred years or so.

Not so with whether marriage is an infinitely elastic concept.

The Fourteenth Amendment mandated that all citizens, and in some instances all persons, be treated as individuals, not as ciphers for an artificial demographic that consigned them to higher or lower privileges, opportunities, and legal standing. Thus, a “black” person should be judged as an individual citizen, not as a “black” person.

To the contrary, the entire “gay marriage” argument requires adjudicating the rights of demographic groups. You have to be defined as a homosexual, rather than as an equal citizen, to even make a claim that you have been denied “equal access” to marriage. Every man, homosexual or heterosexual, has a right to marry any woman, heterosexual or lesbian. There is no discrimination on the basis of sexual orientation.

To attempt an analogy to Loving, one would have to argue that the state is inequitably requiring heterosexuals to marry heterosexuals, and homosexuals to marry homosexuals, when the law should allow them to mix! (Actually, the law in no way forbids them to do so. No marriage law inquires into the sexual orientation of the man and woman who apply for a marriage license.)

There is no constitutional right that all human relationships be treated as equivalents, only that whatever the law provides, licenses, regulates, or taxes treat each person alike. A heterosexual can no more marry a person of their own sex than a homosexual can.

Without any reference to the Bible, it is quite obvious from basic biology that the only reason we have sexual emotions and hormones is, that nothing more complex than a sponge would go through the inconvenient contortions necessary to reproduce if it wasn’t a whole lot of fun. Sexuality is inherently heterosexual in origin, nature, and in the statistical majority of practical results.

Heterosexuality is fundamental to the human species, and the legislature may well choose to regulate it. Homosexuality, whatever it means to the individuals motivated by attraction to their own sex, is a statistical outlier, a sideshow of no particular relevance to humanity generally. There is no reason the legislature should have to regulate it in an identical manner.

Incidentally, the reference to law being the intention of the legislature betrays a profound ignorance of:

a) the difference between legislation and expounding a constitution, and,

b) well established jurisprudence for statutory construction.

Every court in the land, including the Supremes, recognize that when interpreting a statute, a court’s duty is precisely to give effect to the INTENT OF THE LEGISLATURE in passing a bill. Courts have no authority to substitute their own judgment for that of the legislature.

When expounding a constitution, on the other hand, the court’s duty is to keep the legislature and the executive within the bounds of the authority delegated to them by the constitution, and the explicit restrictions on that authority imposed by the constitution. Is the “intent” of the Framers relevant? Undoubtedly. Is what they intended the end of the inquiry? Hardly — if it was, we would have to amend the constitution every time there was a new development in society.

Rather, principles that unmistakably ARE in written into the constitution must be applied to new sets of facts.

That is what Roe v. Wade did. The principles were plain and well developed. Only the facts were newly presented for the court’s consideration.

By contrast, the claim to a constitutional right to a marriage license for combinations of people who do not constitute a marriage was woven from whole cloth, an extreme example of the narcissistic cry “I have a constitutional right to WHATEVER I WANT, and I want it NOW.”

#7 Comment By LaurelhurstLiberal On March 27, 2013 @ 12:32 am

Is originalism relevant any more? Even Scalia doesn’t seem to give it much effort these days. I mean, who really thinks that the writers of the 14th Amendment were open to interracial marriage? There’s plenty of textual evidence that even avid abolitionists weren’t — or at least said they weren’t.

#8 Comment By William Dalton On March 27, 2013 @ 12:36 am

The fact is that neither Brown v. Board nor Loving v. Virginia were valid applications of the Fourteenth Amendment. The idea that children of different races could go to the same school, and the idea that men and women of different races could become husband and wife, were not foreign to the men who drafted, passed and ratified the Fourteenth Amendment. But these were arrangements which they rejected as a matter of public policy at the very time they were ratifying the Amendment and passing civil rights legislation. They did not see these measures as being in conflict with each other. For them it was clear that laws which only allowed people of the same race to marry one another, or children of the same race to go to school with one another, denied no one the equal protection of the law, but treated people of all races alike in pursuance a policy of keeping them all separate. This was the holding in Plessy v. Ferguson, that as long as the same public services were offered to people of all races, it was no violation of the “equal protection” clause to make those provisions separately. When the Court acted in Brown to overrule Plessy it could find nothing in the Fourteenth Amendment, as it was intended to operate by those who adopted it, to support its ruling. Chief Justice Warren’s opinion contained only an argument from the “findings” of social science which had arisen since the Court’s holding in Plessy to justice overruling it.

But from that point, 1954, forward, the nation became accustomed to the idea that “separate” services provided by law were “unequal” services, and therefore a violation of the Fourteenth Amendment. This was a function solely of a change in public perception and not the Constitution itself. The same occurred in relation to the Sixth Amendment’s guarantee to a “right to counsel” in criminal trials. Prior to the decision in Gideon v. Wainwright, including the time that the Bill of Rights was adopted, it was understood that this right only guaranteed that a criminal defendant who could find legal counsel to advise and speak for him could not be denied the right to have that counsel act on his behalf in court at his trial. It had NEVER been understood to entail a right to have legal counsel provided and paid for by the legal authorities who were conducting the prosecution. Today, though, most school children reading the Sixth Amendment assume, and most are told, that the language of the Amendment itself guarantees this right contained only in the statement read to criminal defendants when they are read their “Miranda” rights. But it simply isn’t true.

The fact our society has altered its perception of what justice and fairness entails includes laws which allow for interracial marriage and which provide payment for legal counsel to assist accused persons unable to afford it is commendable. I’m glad we made these changes. But it is dishonest to argue that these results were compelled by provisions in a Constitution which had been adopted a century or more before with very different objectives and intent. And it is problematic for any society when the meaning of any rule of law, whether derived from the decisions of English courts which formed America’s original “common law”, or from statutes passed by American legislatures, or from the Constitution and its amendments themselves, can be changed over time by judicial fiat, rather than by the legislative process prescribed for changes to be adopted in the laws or the Constitution alike.

By the time, in 1963, that the Court decided Loving v. Virginia, it was not longer considered necessary to revert to the kind of social science which was used to lay a foundation for Brown. At that time the American public had already been accustomed to believe the contrary of what was believed in 1871, that separate could not be equal, and this meant a decision that invalidated laws which restricted marriages by race could be supported on the basis of the language of the equal protection clause alone. This was not a result that most of America would have accepted as social policy in the 1960’s, but it was accepted as an inevitable holding by the Court because of the change in the public’s perception of what the Constitution, what the Fourteenth Amendment means and commands.

So the answer to Mr. Olsen’s question is that the things he cited never became unconstitutional, but rather the public came to believe they were unconstitutional because the Court had said they were. The same can be said of the holding in Roe v. Wade, except that in that case a large segment of the American public has never accepted that holding to be valid, no matter how many times the Court has repeated it. The Supreme Court this evening is trying to determine whether the change in interpretation of the Fourteenth Amendment being requested by the advocates of Same Sex Marriage is one which will be received by the public as was Loving, at first with great resentment and outrage, but eventually considered unremarkable, even self-evident, or will it be received as was Roe – not as an end to public debate, but as the catalyst for a further rupture in the fabric of our nation’s polity.

#9 Comment By MikeSchilling On March 27, 2013 @ 2:40 am

But from that point, 1954, forward, the nation became accustomed to the idea that “separate” services provided by law were “unequal” services

On the flimsy grounds that they had been horrifically unequal for nearly a century.

#10 Comment By AC On March 27, 2013 @ 2:59 am

Siarly Jenkins, you make an important point about this. Frankly, I don’t care where one personally comes down on gay marriage or gay rights, but the constant unending analogizing of this to previous miscegenation laws is an insult to any and all intelligent people everywhere, lawyers or no. Interracial couples were still completely within the definition of the SUBJECT IN QUESTION, namely MARRIAGE! The long abuse of this amendment aside, and putting aside for the moment whether the arguments in Loving were really 14th amendment-related, the idea that the equal protection clause applies to people who are making a claim NOT as an individual, or individuals, but as a member of the identity politics group they belong to, here being a homosexual making an equal protection claim on being denied marriage (because he doesn’t fit the definition!), is a whole cloth removed from how this amendment has been applied up until now. It basically is an “argument” for abstract philosophical equality where no (presumably) adult individual could be denied access to virtually anything without violating “equal protection”. Scarily enough, this is the kind of marxist-influenced orwellianism some if not many on the left WANT.

I don’t care if Ted Olson is in favor of gay marriage; I DO care that we’re expected to still call him a brilliant conservative lawyer when he’s making this ridiculous argument. I’d have liked to hear Scalia (or even better Thomas-he breaks his silence!) have ripped this ridiculous analogizing with Loving that journalists and TV talking heads have been making for the last 7-10 years now. You shouldn’t even need to be a lawyer to see how weak this is.

#11 Comment By Egypt Steve On March 27, 2013 @ 6:43 am

The biological basis of the desire to eat is the necessity to sustain the human body, and the necessity to eat in order to live predates the state. Consumption of sugary drinks, regardless of the pleasure they may give to individuals, violates the natural order of things. The state is not obliged to treat the desire to eat crap on the same basis as the desire to eat healthy food. Therefore, the state has the right to tax or even prohibit the consumption of junk food.

#12 Comment By Siarlys Jenkins On March 27, 2013 @ 9:32 am

William Dalton is SOOOOOOOO wrong.

To begin, there was a very eloquent dissent written in Plessy, by the elder Justice Harlan, which is much more faithful to the plain language of the Fourteenth Amendment than is the majority opinion.

The majority wished to set aside the plain meaning of the amendment by tip-toeing around it, to arrive at a result desired by the dominant culture of post-Reconstruction America.

It is true that many abolitionists believed in some sort of separate racial development, and abhorred inter-racial marriage. It is also true that some married inter-racially. It is likewise true that lightskinneded Americans of some visible African descent abhorred the notion of anyone in their family marrying someone darker than themselves.

But for the most part, the assurances given in public were that formal equality before the law would not REQUIRE people to marry inter-racially, which however ludicrous it may seem, was a real fear in the back of many minds.

As MikeSchilling pithily notes, a century of experience, even a decade of experience, clearly showed that separate was NOT equal. The original plaintiff in Brown v. Board of Education simply wanted his daughter to attend her neighborhood school, one block from his home, rather than having to walk a mile across an industrial zone with several railroad tracks to reach a bus stop to be driven several miles to the “black school.” More broadly, if school populations were mixed, well-placed “white” parents who wanted their children’s schools to have the latest science labs and newest textbooks darn well better make sure EVERY school had them.

The Fourteenth Amendment was a sea-change in constitutional jurisprudence. It implemented a concept James Madison had presented to the original constitutional convention, which at that time was voted down. Madison wanted the powers of the states vs-a-vs the liberty of the individual citizen restrained, on the very good ground that a state government can be quite as tyrannical to liberty as the federal government. The experience of my ancestors in east Tennessee (among others) during the Civil War proved Madison right. The Fourteenth Amendment was about much more than freedom for free slaves.

All this does NOT sustain an argument for “gay marriage” because no INDIVIDUAL has been denied the right to marry, that is, to enter into a specific RELATIONSHIP between a man and a woman. A man and a woman, entering into marriage, are not “similarly situated” to two men, or two women. Two men are not even similarly situated to two women. These are three different things, and there is no constitutional reason the law could not treat each of them differently.

The Fourteenth Amendment does not provide for equal protection of all combinations of humans, but for EACH PERSON to be treated equally.

Its also worth noting that Mr. and Mrs. Loving were prosecuted for the crime of BEING MARRIED. As Justice Potter Stewart eloquently said in his concurrence, no law can stand constitutional scrutiny which makes an act a crime, or not, depending on the race of the actor.

#13 Comment By CK On March 27, 2013 @ 9:44 am

“I don’t care if Ted Olson is in favor of gay marriage; I DO care that we’re expected to still call him a brilliant conservative lawyer when he’s making this ridiculous argument.”

I think it is fair to say that Olson is a neo-conservative. In other words, Olson and his ilk never really embraced social conservative concepts. What these folks, like Olson have actually embraced are preventive wars, torture, and now same-sex-marriage.

Social conservatives were too naive during the WBush years, and have no idea who they actually aligned with during that time.

#14 Comment By Egypt Steve On March 27, 2013 @ 10:41 am

Is there any other area of contract law in which the State declares an interest in prohibiting the making of a contract on the basis of the gender of one of the contracting parties?

#15 Comment By CDK On March 27, 2013 @ 11:23 am

Of course, as soon as you embrace the notion that the intentions of the laws’ framers are irrelevant in an era of changing values, then there’s no reason to believe in the authority of the Supreme Court–after all, it was those same framers suffering under rather unenlightened notions of English common law (originating under monarchies!) who devised the institution of the Court to begin with. Why should I care what five people in Washington think about gay marriage or anything else if the only thing backing their authority up are the same laws they routinely dismiss as antiquated and obsolete? Why is the 2nd amendment (to use another example) a relic of barbarous, violent, pre-modern America but the 1st amendment an eternal principle of justice unalterable by the changing winds of opinion?

This issue is not being decided honestly under any standard. Were the Supreme Court to uphold Prop. 8, we would hear endless cries of the justices’ prejudice and failure to understand what century the “rest of us” are living in i.e. they’re bigoted fools with no shred of logic or law to stand on. It would be considered merely a road bump on the way to an inevitable outcome, and nobody would say, well, the Supreme Court decided that so let’s all go home and talk about something else. But if they overturn it, regardless of their reasoning or its effect on jurisprudence or whether it was nothing more than them jumping on the bandwagon of the moment, they’re heroes, wise and hip, and the debate is over (if it wasn’t already, of course), f— those social conservative KKK-types who we can’t wait to die off anyway (love that ageism, guys!).

We have a 50% divorce rate. The public square is so sex-saturated that the problem is finding a relationship (friends, strangers, family, etc.) that isn’t haunted by the constant awareness that the closer you get, the more screwing each other makes sense as a possibility. The utterly nihilistic promiscuity that is the default among youth leaves one not only shocked, but drained–and terrified for one’s own children in an age of internet porn and smart phone sexting. Whatever family one has is only as permanent as the latest whim of its most unstable or disloyal adult, making the term “infidelity” itself without meaning. If gay marriage could turn even one of these around, I’d divorce my wife and marry the first dude who would have me–and that with a smile on my face. But a symptom of the disease can hardly cure it.

Jeez, I’m just tired.

#16 Comment By Thomas Cheeseman On March 27, 2013 @ 11:36 am

The reason the 14th applies to Loving and Brown is because the common understanding of equal in the 14th amendment was with regards to race. So that equal refers to race and allows for further rulings that prohibit discrimination on the basis of race. This does not apply to women or gays. Does that mean I support discriminating against either group? No. It just isn’t a Constitutional matter. What you are advocating is a postmodern approach to the Constitution where the words don’t mean what they mean.

#17 Comment By Charles Cosimano On March 27, 2013 @ 11:50 am

It would be nice if the Supreme Court justices would just come out and say, “The law is what we say it is,” and have done with it.

#18 Comment By Egypt Steve On March 27, 2013 @ 12:08 pm

Here is the text of the 14th Amendment. The word “race” appears nowhere. I’m no lawyer, but I would think that it’s normal to understand “intention” both positively and negatively. The framers of the 14th could have drafted the text to specify that it was intended as a framework for preventing racial discrimination only. They chose not to. Therefore, we can infer that their “intention” was not so limited.

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.
Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

#19 Comment By Flavius On March 27, 2013 @ 12:29 pm

I can imagine that it would be possible for the Supreme Court with the available talent to mumbo-jumbo up a map of the Constitution that has a place for homosexual marriage on it, if that is what it wants to do. And just about everybody but the Mad Hatter and the New York Times editorial board will know that that is exactly why it did it.

#20 Comment By William Dalton On March 27, 2013 @ 1:16 pm


A lot has been written about the history of the passage of the Fourteenth Amendment, and like the passage of any significant piece of social legislation, the intents and the desires of those who sought its passage were not uniform. But the same Congress which passed the Fourteenth Amendment also passed legislation providing for public education in the District of Columbia and throughout the Reconstruction South, which education was uniformly segregated by race. Therefore, as a body, the Congress which framed and sent to the States the Amendment which contained the clause requiring the equal protection of the laws, a measure whose clear purpose was to put black people upon the same footing under the law as white people, did not find that requirement to be incompatible with racial segregation. Philosophically, our understanding of what fairness and justice requires may change over time by reason of reflection and experience, but the words in a legislative enactment, even a Constitutional enactment, do not change and neither do their meaning. For reasons that go far beyond the admittedly important issues of race relations and even sexual relations, it is even more important that we not pretend they do.

#21 Comment By Thomas Cheeseman On March 27, 2013 @ 1:16 pm

Ok, but I’m not talking about intention, precisely because intention is almost impossible to discern. I’m talking about the plain meaning at the adoption in 1868, which was did not extend to sexual orientation. To claim that because it doesn’t specifically state race that it is open-ended equality raises a whole host of other questions. Are we not denying incestuous relations and polygamous relations “equal” recognition? How far does equal expand and what is the implication of a non-constant meaning of the text?

#22 Comment By Adam On March 27, 2013 @ 1:29 pm

“nor deny to any person within its jurisdiction the equal protection of the laws.”

Marriage within the legal framework here in America bestows some rights, privilages, and protections to those that engage in the practice. Limiting participation to that practice to a man and a woman only is to deny equal protection under the law. Now, you can make the argument to me all day long that under religious views, marriage is between a man and a woman only, and I would agree. However, if you are going to take a religious practice and subject it to civil law, then it needs to conform to the equal protection under the law clause.

#23 Comment By Thomas Cheeseman On March 27, 2013 @ 2:44 pm

Ok, but you can’t expand equal forever. Is incestuous marriage constitutionally protected? If yes, then we are going to have to part ways because that does not seem to be an appropriate understanding of equal protection under the 14th Amendment as it was adopted. If those privileges are provided for procreation then the gay marriage issue does not apply.

#24 Comment By ProNorden On March 27, 2013 @ 3:10 pm

It’s not unconstitutional for states to not recognize inter-racial “marriage” or to not issue a marriage license for such couples. That might not make it good policy, but it’s a free country … people of different races and same genders can form households of two or several participants if they like …and can call themselves a marriage or a Mardis Gras parade if they like.
But the public is also free … to recognize and license “marriage” as we see fit … for whatever good public purpose we think is served.

#25 Comment By Steph On March 27, 2013 @ 3:51 pm

I can’t imagine it would have won him any points with Scalia or helped his argument, but Olson could have answered 2003, with Lawrence v. Texas, and Scalia himself might have had a hard time arguing otherwise having said the following in his dissent:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

#26 Comment By Red Phillips On March 27, 2013 @ 5:26 pm

“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.”

Scalia should be embarrassed by this flippant response. He shouldn’t expect Olson to come up with anything better when he’s tossing out such historical inanities.

I was going to make the same point that Mr. Dalton made in response to Mr. Jenkins’ nonsense – the Congress that passed* the 14th Amendment also segregated the DC school system – but Mr. Dalton astutely beat me to it. According to the Jenkins’ school of Constitutional “interpretation” the Constitution means what he would like it to mean. But such people really have no interest in “interpreting” the Constitution. They simply want to “apply” it in the manner that suits them.

*I don’t concede that the 14th Amendment was ever legally enacted since it was passed under duress by the occupied Confederate States, but that is for another discussion.

#27 Comment By Anderson On March 27, 2013 @ 5:39 pm

” The framers of the 14th could have drafted the text to specify that it was intended as a framework for preventing racial discrimination only. They chose not to. Therefore, we can infer that their “intention” was not so limited.”

Steve is correct. The language of the Equal Protection Clause is very, very broad, and there is no way to pretend that it wasn’t very, very broad in 1868. Those who enacted it may not have understood just what applications it would have, but they knew they were enacting something that was extremely general in scope.

#28 Comment By Adam On March 27, 2013 @ 5:46 pm


Only in Tennessee:)

#29 Comment By AC On March 27, 2013 @ 6:41 pm

Applying the equal protection clause as such described here would mean basically applying it without ANY context whatsoever. Why can’t a wealthy man paying 39.6% in income tax take the same tack then, and claim “equal protection” violation when a lower income individual is paying a lower rate? Surely, the law is treating them unequally? And that would have more merit, in my view! Both would be claiming harm as INDIVIDUALS, who pay taxes, whereas in the here and now, homosexuals are claiming an injury SPECIFICALLY as homosexuals, as they must to make their claim. If their argument was not to change the meaning of marriage but to eliminate any and all federal and state benefits of it which necessarily go to only hetero couples, it would have more consistency it seems to me. Instead, there is this silly (and arrogantly ahistorical) assumption that marriage just means “a couple”, any couple, and based on that disregarding of context, what wouldn’t be an equal protection violation? Cheaper senior or student movie theater ticket prices? An equal protection violation against those who aren’t seniors or students.

The 14th has had a lot of problems in the way judges have twisted it over the decades, but how would this not be a complete obliteration of the equal protection clause into meaninglessness?

#30 Comment By AC On March 27, 2013 @ 7:03 pm

Thomas Cheeseman: It SHOULDN’T apply to women, or more appropriately to sex based exclusivity, but that ship sailed a while ago. See the 1996 U.S. vs. Virginia, which used the equal protection clause to insist that the Virginia Military Institute must admit women. It’s absurd to suggest the Amendment was meant to bar any federally funded institution from being sexually exclusive, (if only those men of the 19th century could see us now, huh?) but that’s what the court did.

Without getting into the weeds on intersex people, however, everybody making a claim is either a man or woman; here, the equal protection violation is somehow stemming from a minority class (THE ULTIMATE minority class) being denied access to an institution that doesn’t apply to them at all!

#31 Comment By Seth Owen On March 27, 2013 @ 7:21 pm

“*I don’t concede that the 14th Amendment was ever legally enacted since it was passed under duress by the occupied Confederate States, but that is for another discussion.”

So, we’re concerned about the “duress” imposed on white traitors in the “occupied Confederate States,” are we?

Well, I don’t concede that the so-called confederate states ever legally left the union, it being a mere insurrection against legitimate authority. Oh, and the entire southern system was maintained by coercion and extracted labor under “duress.”

The southern white power structure — abetted by powerful interests in the other regions — soon re-imposed itself and re-asserted measures and controls that amounted to de facto slavery in many case and quite clearly demonstrated that “separate” was not and would never be “equal.” This is hardly surprising, of course, because the entire point of the separation was to be unequal. And yet we have our constitutional theorists who choose to ignore a hundred years of experience in order to defend their pet interpretations.

One of the reasons why the arguments against same-sex marriage has been losing traction rapidly — even among some conservatives — is because of the uncomfortable resemblance it bears to earlier arguments against interracial and interfaith marriage. Sure, there are some distinctions between them, but do they amount to a relevant difference? Public opinion is settling on the answer being ‘no, there is no essential difference between prohibiting interracial marriage and prohibiting same-sex marriage.

#32 Comment By SteveJ On March 27, 2013 @ 8:51 pm

Perhaps I am missing something here and would gladly accept some ideas.

Taking an example and working backward, what would be the limiting legal principle for polygamists who seek 14th amendment protection from state laws on marriage?

You might claim that monogamy is different from same sex. But then same sex in different from race.

What is the cutoff point for states in defining marriage based on the 14th amendment?

#33 Comment By curle On March 27, 2013 @ 9:07 pm

William Dalton is the voice of reason in this debate. We are only at this crossroads, as a constitutional inquiry, because of wrong turns made in the past (Loving). The solution to bans on interracial marriage was not stretching the 14th Amendment into a pretzel, it was to change the law through political means or to enact a new constitutional amendment.

“The fact is that neither Brown v. Board nor Loving v. Virginia were valid applications of the Fourteenth Amendment.” ————– 100 percent correct.

#34 Comment By Consequences2 On March 27, 2013 @ 9:48 pm

What matters is the meaning of the duly enacted words themselves, as understood in the 19th century. Allowing a man to marry only a woman does not violate “equal protection” of anyone. That is what marriage is.

The duly enacted words of the Constitution and its amendments themselves, not the meaning of every word as it stood in 1791. The pertinent words are “citizen”, “person”, “equal protection”, not “marriage”. To hold the view that all words must be seen as they were seen 200 years ago would require a constitution longer than a dictionary. “Navigable waterway”…. well, in 1791 you couldn’t sail the northwest passage, so I guess U.S. law no longer regulates the sea north and west of Alaska. It’s absurd.

Taking an example and working backward, what would be the limiting legal principle for polygamists who seek 14th amendment protection from state laws on marriage?

Precedent. The Supreme Court already decided that one long ago. If Mormon or polygamist Muslims want to raise the issue again, they have to overcome the demonstrable harm polygamy inflicts on women and the larger community. Those effects withstand even strict scrutiny.

And beware the federalist idea that the U.S. govt should leave all marriage issues to the state. That the same people who make that argument also fear the Muslim hoard they say is coming is really weird.

#35 Comment By SteveJ On March 27, 2013 @ 11:15 pm


“If Mormon or polygamist Muslims want to raise the issue again, they have to overcome the demonstrable harm polygamy inflicts on women and the larger community.”

Yes, I think that works. You are saying that unless a demonstrable harm can be shown, the state cannot dictate marriage arrangements under the 14th amendment.

#36 Comment By AC On March 28, 2013 @ 1:51 am

There’s a hell of a lot more difference between interracial marriage which hew to the meaning of the term the same as “white” or “black” marriages, and homosexual “marriage” which are de facto oxymoronic, than there is a difference between homosexual marriage and every variety of polygamy and/or polyamory. Obviously. No screaming advocate of redefining marriage can credibly deny this. Blathering about southern white power structures isn’t an argument, either.

#37 Comment By Richard Parker On March 28, 2013 @ 3:42 am

“The original plaintiff in Brown v. Board of Education simply wanted his daughter to attend her neighborhood school, one block from his home, rather than having to walk a mile across an industrial zone with several railroad tracks to reach a bus stop to be driven several miles to the “black school.”

So the original plantiff didn’t want his daughter bused based on her race. I’m fullly on board with that except that multitudes of white kids were bused based on their race until Parents Involved.

#38 Comment By Daniel On March 28, 2013 @ 7:00 am

“All animals are equal, but some animals are more equal than others” – Animal Farm

#39 Comment By Egypt Steve On March 28, 2013 @ 8:03 am

btw, Christian marriage has been redefined in the 20th century from one in which the man is the “head,” in a relationship to his wife analogous to the position of Christ vis a vis the Church, to one of legal equality of the partners. Ad it has been redefined from one that is permanent (“whom God hath joined, let no man put asunder”) into one that is legally dissoluble. I realize many conservatives object strongly to both of these developments, but there they are. And there are any number of differences that one can point to between modern Western marriage and marriage as it has existed at other times and places. Institutions change. Despite the rhetoric of traditionalists, marriage as it exists today is not the same institution that has existed from before the time of the state.

#40 Comment By EliteCommInc. On March 28, 2013 @ 9:36 am

“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.”

1. When color a benign trait was used exclusive against men and women to prohbit their desire and choice to have their marriaged recognized by the state while permitting other colored peoples, namely whites to be so engaged. But I think you have forced your matter onto yourself. You do acknowledge that the case involved man and women, a pair bond that was acknowledged by the state of like bonded unions.

2. The question was not one of just seperateness, but equality. If seperate the states were bound to provide equal servuces they did not. The question is wholly out of context with the matter at hand. Your complaint is not that married people of differeing sexes are being seperated and treated differently. You are positing that a pair bond of a different composition be given the same responsibilities as a pair bond of differing sexual composition. And doing so without acknowledging why those differences exist. You are asking for a compelling exemption for a relationship which does not conform to the standards and practice of marriage.

#41 Comment By EliteCommInc. On March 28, 2013 @ 9:37 am

. . . and doing so minus any compelling reason to so enact.

#42 Comment By Siarlys Jenkins On March 28, 2013 @ 5:03 pm

A reasonable repartee, Mr. Dalton. I would suggest this: the congress that passed the education law for the District of Columbia conceived that separate education by race did not ipso facto violate equal protection of the laws, and found good cause to believe separate schools a good thing, or, even went along with it because it was common practice and not widely objected to. Thirty years later, the Supreme Court officially weighed in that it did not violate equal protection of the laws.

But, after fifty years of naked terrorism, it became more than evident that as applied, and quite possibly inherent in such a practice, the equal protection of the laws were in fact being denied.

Red Philips: The simple fact is, after fighting four years of war and subduing substantial armies, the last thing the victors would do, no matter who won, is put up to a vote the questions the war was fought over. At the end of such a war, the first step is to put in place the constitutional formulations that enshrine the victory, then, re-establish republican institutions on that foundation.

The bourbon aristocracy of the South had only themselves to blame. As Alexander Stephens pointed out in his last plaintive argument against secession, more often than not, the South had dominated national institutions, and probably would have again. They threw it all away because they couldn’t stand to lose one round. Too bad.

#43 Comment By Mia On March 28, 2013 @ 8:06 pm

“The union of a man and a woman in matrimony is an institution that predates the state and is the foundation of human society. Whatever sort of coupling homosexuals desire has nothing to do with that.”

To sum your point up: this is the way we have always done it. That is precisely why the conservative argument fails. For people who are not interested in doing things because “this is the way we have always done it” this conservative argument really means nothing more than resisting change.

It’s quite ironic, really. The Republican Party was born because of resistance to slavery. The Republican Party was on the right side of equality then.

#44 Comment By Siarlys Jenkins On March 31, 2013 @ 7:47 pm

The Republican Party ceased to serve its primary political function in 1877. Since then its been a cause looking for a purpose.

But the fact that heterosexuality is fundamental to the human species, and homosexuality is at best an irrelevant outlier, has nothing to do with “the way we have always done it.” Its a simple biological fact.

That doesn’t mean we could not vote to issue marriage licenses to same sex couples some of our fellow citizens are drawn to form. It just means that heterosexual couples and homosexual couples are not similarly situated.

It does seem obvious that some small percentage of humans in every generation have been homosexually inclined, for whatever reason. Any sensible social framework should recognize that, but not necessarily as “just like” heterosexuality.

#45 Comment By Pat On September 13, 2013 @ 6:52 pm

Passage in Bible of public recognition of the oath not to put asunder what God hath joined is a very understated principle in human relations that has stood as long as marriage and its creation.

While most believe im the principle, the clause remains as undefined and interpreted in modern law where same sex marriage has become legal, and may become commonplace.

Typically reserved for married couples in ancient days, the reality of its origins may be to recognize the special union created by the production of a child in matrimony which matrimony was created to protect. How far that interpretation extends, or to whom it may extend, or why, remains unsettled law until such query is undertalen by responsible leadership, like the Supreme Court.