My response to Justice Scalia’s question on Prop 8

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.)

JUSTICE SCALIA: When do you think it became
unconstitutional? Has it always been unconstitutional?

I would argue it’s not 1791 (Bill of Rights ratification), or 1868 (14th Amendment) or even 1967 (Loving case) but somewhere around between 1890-1925 when the concept of “homosexual” as something you are rather than something you did became entrenched as a concept (albeit mainly a negative one). “Homosexual” as a noun only began appearing in dictionaries in the 1890s. Granted, it took another half century or so of people coming out of the closet in large enough numbers to push society to grapple with the implications of this. Yet once that status as something you are had been accepted by society (even if adversely) the Equal Protection of the 14th Amendment kicks in I would think. Even if 99.9% of the population (including gay people themselves) couldn’t fathom it!