Ellis Washington Comes to Scalia’s Rescue

After the oral argument in the Prop 8 case, I noted Justice Scalia’s rather incoherent question to Ted Olson asking “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?” Olson answered this with another question:

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?

This was a very good answer, as I noted, because it puts Scalia into a real bind. Because the question he asked would have been asked, with exactly the same authority, in both Loving v Virginia and Brown v Board of Education. In fact, can anyone doubt that Scalia would have asked that same question if he had been on the court when those cases were heard? But you see, Scalia can’t admit that now because he is on the record saying that he thinks those two cases were rightly decided, even though they are entirely contrary to the interpretive theory he has claimed to favor again and again.

Ellis Washington tries to come to Scalia’s rescue:

Since on any level (scientific, legal, moral) there isn’t any innate differences between blacks and whites (or any race), discrimination or policies enacted based on these non-differences is both irrational and unconstitutional. However, there is ample scientific, legal, moral and practical differences between men and women.

And why is this supposed to be relevant? That there are differences between men and women, which no one denies, does not in any way logically support the idea that we must prevent gay people from getting married. This is a classic non-sequitur.

Miscegenation laws (e.g., Loving v. Virginia [1969], et. al.) were discriminatory and unconstitutional, although they existed in America for over 200 years. They violated Natural Law and the lofty guarantees in the Declaration of Independence, which promised that “All men are created equal.”

Ah yes, Washington’s favorite invocation, “natural law,” which seems to mean whatever he wishes it to mean at any given time. The reality, of course, is that the advocates of miscegenation laws for those 200 years, and for centuries before that, argued that it was wrong precisely because it violated “natural law.” Because the concept of “natural law” is utterly incoherent; it can be made to mean anything you’d like it to mean.

Washington claims to be an originalist, but by any possible version of conservative originalism, the 14th Amendment cannot be used to invalidate laws against interracial marriage. One of the primary objections to the 14th Amendment was that the equal protection clause would invalidate such laws, but the framers of the amendment assured the public that it would not do that. Whether you prefer original intent, original public meaning or original expected application, you cannot make a conservative originalist case against miscegenation laws using the 14th amendment (though one can use Randy Barnett’s liberal originalism or Jack Balkin’s living originalism to reach such a result).

It would have been anathema for the civil rights movement and Dr. King, a Christian minister, a Republican and a strong Natural Law advocate, to march, bleed and die for “gay rights” or “same-sex marriage” in the 1950s and ’60s.

Even if this were true (and it’s not; see Bayard Rustin), so what? If a leader of the women’s suffrage movement were a racist, would that be an argument against later extended civil rights to black people? Of course not.

16 comments on this post.
  1. slc1:

    Martin Luther Kigk a Rethuglican? Washington is a fuckken liar.

  2. d.c.wilson:

    What does “natural law” meaning other than “anything Ellis Washington thinks is icky”?

  3. democommie:

    “Ellis Washington Comes to Scalia’s Rescue”

    I think I seen me a cartoon, the oncet, that was like Tom & Jerry and that OCD cat that used to chase ‘em. So, anyways, he’s chasin ‘em around on a boat and falls off and one of the meeses trows him a life preserver, which he quickly gets hisself into and THEN finds out it’s not filled with kapok but with quicksettin’ ceement! Laughs all around and a little, sad, blurb, blurb, blurb.

    I gotta say, though, that where one is a humorous image, the other is a tragedy, that poor cat just doesn’t deserve that sort of treatment.

  4. democommie:

    Ellis Washington would do well to remember that up until at least 1865, people owning his ancestors was pretty much considered to be “natural law”.

  5. gshelley:

    Is there any resource that gives a good overview of the fourteenth amendment and miscegenation laws? I can find bits all over the place, but nothing that brings them together,
    For example, I know that somewhere, there is a record of the congress debate that mentions people were worried and reassured that this would not make such laws unconstititional. I can see a list of when laws were repealed, but non of when they were enacted (other than one mention that Arkansas updated their law after the civil war). Another site mentions that apart from in California, all State Supreme Courts found such laws constitutional, but with no indication of when, Wikipedia has a proposed ammendment in 1871 because at least one person was worried about this

    The response that people who agree with Scalia will generally give is “it was obvious at the time. You can’t prove otherwise” and it would be very convenient to be able to show such people that Congress said it wasn’t the case, that courts that looked at the issue in the following 20 years said it wasn’t the case, that legislators that considered it in that time period said it wasn’t the case, that Newspaper opinion articles didn’t claim this would be a problem
    And so on

  6. gshelley:

    In partial answer to my question, a law article
    http://www.jstor.org/stable/1071448
    Anti-Miscegenation Laws and the Fourteenth Amendment: The Original Intent (1966)

  7. doublereed:

    The whole idea of “originalism” seems like intellectually dishonest BS (or maybe this is just Scalia). It’s just “I’m going to pretend that my opinions were the original opinions.” Like that’s all it is. At least living constitution people are actually honest about disagreements.

  8. abb3w:

    “Natural law” generally means someone hasn’t paid enough attention to Hume on the is-ought problem. (I think what Ed’s complaining about is more exactly a prior premise that is missing the key connecting premise.)

  9. Gretchen:

    There’s a difference between blacks and whites– some of them are black, and some of them are white.

    Now Ellis, explain to me how that’s less relevant to marriage than some people being men and some being women.

  10. kantalope:

    Did that guy just say that the equal protection clause should not apply to women?

    And Scalia would have to agree, with original intent, women not protected by constitution

    Sorry ladies…you is out of luck. Now please get your husband’s permission before posting any response and, well doing anything else either. (that last part typed on special snark filled keyboard)

  11. Ace of Sevens:

    He supperts interracial marriage? What kind of confederate is he?

  12. dugglebogey:

    Again, I believe the phrase “Natural Law” can accurately be interpreted to mean “gay sex makes me feel all weird inside and I don’t want to have to face up to the fact that I have those feelings so I must stomp them down as hard as I possibly can and stop anyone else from reminding me of them.”

  13. footface:

    And what exactly are the “moral differences” between men and women?

  14. marcus:

    Ed Brayton “..see Bayard Rustin.”
    How could I not have heard about this brilliant and dedicated person? Well at least ignorance is curable. Ellis Washington’s affliction may not be.

  15. Modusoperandi:

    But, Ed Brayton, they’re totally different. Mixed marriages still involve men and women who are equal and different and the samely different, while gay marriage has homo sex. So there!
     
    slc1 “Martin Luther Kigk a Rethuglican? Washington is a fuckken liar.”
    No. It’s more a matter of the parties fracturing and coalescing, flipping over time. By talking about them now as they were (or vice versa) one can smear the present with the past, or ignore the present for the past.

  16. Jacob Schmidt:

    I’ve come to the conclusion that the constitution needs to be re-written from the ground up just to take away pathetic arguments like this.

    Modus, at times you are hilarious, and at times you are so similar I honestly can’t find you funny.

    To wit, I have heard that argument almost word for word.

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