JUSTICE SCALIA: When did it become unconstitutional to ban same-sex marriage? Was it 1791? 1868?
TED OLSON: When did it become unconstitutional to ban interracial marriage?
JUSTICE SCALIA: Don’t try to answer my question with your own question.
Scalia has nothing. And he knows it. Update from a reader:
Balkin’s paraphrase is deeply misleading. Here’s the whole exchange, from the transcript:
JUSTICE SCALIA: You — you’ve led me right into a question I was going to ask. The California Supreme Court decides what the law is. That’s what we decide, right? 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.)
The argument goes on, that it become unconstitutional when society evolved, making Scalia’s point that there’s no basis in the constitution for this decision. If we value having a written constitution constraining the court’s veto power over our democracy, this could be an ugly precedent.