Orin Kerr The Volokh Conspiracy 3/26/2013

At the oral argument today in Hollingsworth v. Perry, Justice Scalia repeatedly questioned Ted Olson on when same-sex marriage became unconstitutional. From the transcript:

JUSTICE SCALIA: I’m curious, when -­ when did — when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth […]