Watching The Prop 8 Debate

The New Yorker has done a nice job matching up parts of yesterday’s audio with the only visuals we have, drawings:

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How EJ Graff answers Scalia’s question:

Scalia is right to ask when, exactly, our marriages became a constitutional right. It became a constitutional right with the combination of Griswold v. Connecticut and Eisenstadt v. Baird, which allowed heterosexuals to snip the link between sex and babies by legalizing contraception, and Lawrence v. Texas, which Scalia rightly predicted would lead directly to same-sex marriage.

It became a constitutional right when thousands upon thousands of us started coming out to our families and having weddings, thereby enlisting cousins and nephews and sisters-in-law and stepfathers and neighbors to our side. It became a constitutional right as we told our myriad stories of love and commitment, of bereaved widowhood or denied military benefits, of unfair treatment and happy families. It became a constitutional right when you all realized you had nothing to fear from me and my gal.

My response?

The answer is surely that these forms of discrimination became unconstitutional once the collective consciousness of Americans recognized that the discrimination was unjust – and sometimes before. When Loving vs Virginia was decided, there was far more popular support for maintaining anti-miscegenation laws than there is now from keeping gays out of legal marriage. And once you’ve opened up equal protection beyond race, your only reliable guide is public consciousness and consensus. This is anathema to Scalia. But a constitution that cannot adapt to the constantly-changing society it regulates is, in the words of Scalia himself, “dead, dead, dead.”