During the oral argument in the Prop 8 case on Tuesday, Justice Scalia trotted out the old conservative premise that no right exists if it wasn’t recognized long before now. This is one of the questions he asked and Ted Olson’s excellent reply to it:
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 in fact, that’s not true — especially to someone who claims to follow originalism. The framers of the 14th Amendment made absolutely clear that the amendment would not have any effect on state laws against interracial marriage. There’s no way in hell it would have passed if it had. So whether you’re going by the original intent, the original public meaning or the original expected application, it would be absolutely wrong to apply the 14th Amendment to strike down laws that banned miscegenation. And in fact, the Supreme Court ruled exactly that in 1883 in Pace v Alabama.
This has always been a problem for Scalia, as I’ve pointed out previously. He claims that Loving v Virginia was rightly decided, but every single argument he uses against same-sex marriage was used against interracial marriage in that case. No one can seriously believe that if Scalia was on the court in 1967, he would have been in the majority in Loving, at least not without some serious logical backflips.