SCOTUS on Prop. 8: When Did Gays Get Into the Constitution?


Analyses, prognostications and educated guesses abound after Tuesday’s argument before the United States Supreme Court on the merits and legal technicalities of California’s Proposition 8. For most, the focus is firmly on Justice Anthony Kennedy, the cypher who sits at the middle of the Court, appointed by conservative icon President Ronald Reagan and still somehow the author of the two most important Supreme Court cases decided so far when it comes to LGBT equality, Romer v. Evans and Lawrence v. Texas.


March 26, 2013 - Washington, DC, USA - Attorneys David Bois (front, left) and Ted Olson walk out of the U.S. Supreme Court followed by plaintiffs (from left) Sandy Stier, Kris Perry, Jeff Zarillo, Elliot Perry (son of Kris and Sandy), Paul Katami, and human rights advocate Chad Griffin, after California's Proposition 8 was argued before the Court. (Credit Image: © Molly Riley/MCT/



And yet, as I listened to yesterday’s arguments on the case officially known as Hollingsworth vs. Perry, I couldn’t help but be struck by an exchange between Theodore Olson, the conservative half of the pro-marriage equality side’s legal “odd couple,” and the outspoken originalist who holds down the right wing of the bench, Justice Antonin Scalia.

In a heated back-and-forth Justice Scalia repeatedly demanded to know just when society lost the ability to discriminate against same-sex couples.

“When did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted?”

“When did it become unconstitutional to prohibit gays from marrying?”

“50 years ago, it was okay?”

Seven, eight times he repeated the question, setting a rhetorical trap for George W. Bush’s former solicitor general. The subtext is clear: did our Founders, or the authors of the post-Civil War 14th Amendment, have any love in their hearts for the cute gay couple down the street? Scalia didn’t want an answer – he wanted to force Olson to explain just how gay people got into his Constitution, or better yet, to admit that they aren’t there and thus the Court has no need or right to strike Prop 8 down.

But we know that it isn’t the Constitution that has changed – it’s our culture, and our understanding of the expanse of diversity that is encompassed when we set out to protect every individual’s fundamental rights and equality under the law. Fighting to get a in word edgewise, Olson responded that recognizing same-sex couples’ freedom to marry became constitutionally imperative “when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control…There's no specific date in time. This is an evolutionary cycle.”

The debate between Olson and Scalia was a perfect representation of the conflict today among conservatives, and our nation writ large. The line is not between Republican and Democrat, but rather between those people who accept that LGBT people are a normal, everyday part of our society, and those who are still asking where all these homosexuals came from, and how the world has changed so much so fast.

Whether the Supreme Court will take this opportunity to recognize LGBT Americans’ constitutional right to equal protection in marrying the person of their choice, or instead chooses to kick the case back to California on a technicality – the “standing” question – is difficult to gauge, and I will leave it to others to guess. What is certain is that our society is only moving in one direction, and it won’t be long until America recognizes that gay rights are in our Constitution, and when we do, we'll say they’ve been there all along.

Listen to the full audio recording of the hearing on Prop. 8 at the Supreme Court website.


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