Scalia: 'When Did It Become Unconstitutional To Exclude Homosexual Couples From Marriage?'

In oral arguments before the Supreme Court Tuesday, Justice Antonin Scalia repeatedly pressed Ted Olson, the attorney advocating same-sex marriage, over the issue of when exactly marriage, as it is defined in most states today, became unconstitutional: 

“We don’t prescribe law for the future. We decide what the law is. I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868? When the Fourteenth Amendment was adopted?”

Olson countered that with a question of his own, bringing up two past high-profile cases involving discrimination: “When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?” Olson asked. 

“Well, how am I supposed to decide a case, then, if you can’t give me a date when the Constitution changes?” Scalia said.

“Because in the case that’s before you today, the citizens of California decide — after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California — then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.”

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