One of the more compelling exchanges during the oral arguments on the same-sex marriage cases came between Justice Scalia and Theodore Olson, attorney for the opponents of Proposition 8. Here is the exchange:
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 — the Equal Protection Clause was adopted. That’s absolutely true. But don’t give me a question to my question.
JUSTICE SCALIA: When do you think it became unconstitutional? Has it always been unconstitutional?
Mr. Olson eventually answered the question by saying, “it was constitutional when we - as a culture determined that sexual orientation is a characteristic of individuals that they cannot control.”
Justice Scalia’s question reflects constitutional philosophy of conservatives: original understanding. Conservatives frequently argue that the conservative perspective on constitutional law is correct because it adheres to what the drafters of the Constitution believed when they wrote the words. A conservative might argue that the founders probably did not believe they were writing a universal right to abortion into the Constitution, and the drafters of the 14th Amendment probably thought what they were writing had nothing to do with homosexual sex. Thus, a conservative would conclude that Roe and Lawrence are nothing more than judge made law, not based on what the Constitution says, but on what liberals want it to say. A judge’s job is to interpret the law that exists, not to make new law. Therefore, Roe and Lawrence were wrongly decided.
Justice Scalia’s question reflects his belief in original understanding. But Mr. Olson could have answered Justice Scalia’s question in a way that should convince an originalist that the Constitution protects a right to same-sex marriage.
Mr. Olson’s rhetorical question was on the right track. It suggested (correctly) that it is unlikely that the drafters of the 14th Amendment believed that they were creating rights to inter-racial marriage or to be free from school segregation. But all but the most hard-core originalists now concede that Brown v. Board of Education and Loving v. Virginia were correctly decided.
Justice Scalia, true to form, opined that those rights existed as soon as the 14th Amendment was adopted, and the Supreme Court just didn’t recognize them right away. But how is that consistent with an originalist perspective? If the drafters of the 14th Amendment did not believe they were banning segregated schools, how can Scalia argue that the right existed when the 14th Amendment was adopted?
Justice Scalia might respond by citing Judge Robert Bork, a leading originalist scholar. Bork argued that Brown v. Board of Education was correctly decided, even from an originalist point of view because the drafters intended the Equal Protection Clause to outlaw unequal treatment based on race. The drafters just didn’t understand that segregated schools were inherently unequal. As soon as society (through scientific studies) figured that out, the Supreme Court held that the Equal Protection Clause banned school segregation. In other words, before Brown, judges thought they were properly interpreting the Equal Protection Clause because they thought separate but equal was equal. It took until the 1950s for sociologists and courts to realize that separate but equal was in fact not equal. Thus, Brown did not change the Constitution. It reflected a determination that judges were wrong all along about what was and was not “equal.”
Here’s the thing: the same logic applies remarkably well to the same-sex marriage issue. The people who adopted the 14th Amendment probably did not think they were creating a right to same-sex marriage. But they did think that they were requiring government to insure equal treatment under the law to people in protected classes. A significant factor in determining whether a group of people is a protected class is whether the class is defined by an immutable characteristic. Most of the drafters of the 14th Amendment probably believed homosexuality to be a choice (and, therefore, not immutable). But within the last few decades, the consensus among experts has become that homosexuality is in fact immutable. Just as the Court in Brown determined that society had developed a deeper understanding of what is “equal”, society has now developed a deeper understanding of what characteristics are “immutable”.
So, the answer to Justice Scalia’s question about when the right to same-sex marriage was created is “1868”, when the 14th Amendment took effect. Society (and the Supreme Court) has misunderstood the very nature of homosexuality since that time. Thus, judges have been misinterpreting the Equal Protection Clause ever since. And a ruling that the Equal Protection Clause protects a right to same-sex marriage is consistent with an original understanding of the Constitution.
 Robert H. Bork, The Tempting of America: The Political Seduction of the Law, Simon & Schuster, Inc., p. 82 (1990).