When Did Same-Sex Marriage Become Unconstitutional?

Orin Kerr
The Volokh Conspiracy

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 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. When do you think it became
unconstitutional? Has it always been unconstitutional? . . .

MR. OLSON: It was constitutional when we -­as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -­

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.

Olson wasn’t inclined to give an specific date or window of dates in response to Justice Scalia’s question. But VC readers have: Results of the VC reader poll from 2010 on when same-sex marriage became unconstitutional (at least among those who think it is currently unconstitutional) is available here.


Also at the site: Oral Argument Audio Released in Hollingsworth v. Perry 

and Goldstein on the Oral Argument in the Prop 8 Case

Related: “Breaking: key vote Kennedy VERY uncomfortable striking down #prop8.”

…But of course Kennedy would hang back in contrast to the 4 liberal Justices. His difference from them doesn’t mean he won’t join them in the end…


Also, Gay Tea Party Founder: If We Redefine Marriage, ‘We’re Going to Redefine Children’ 


Update: Mark Steyn, Married by the Judge

…It may well be that the tide has turned, and the American people are cool with gay marriage. In that case, their elected representatives should enact it into law (as the House of Commons at Westminster recently did). But the spectacle of a nation agog waiting for a puff of smoke from Justice Kennedy to see which way he’s going to blow is ridiculous. Why not ask Punxsutawney Phil?



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