“When Did It Become Unconstitutional to Exclude Homosexual Couples From Marriage?” – “May I Answer This in the Form of a Rhetorical Question?”

by gradycarter


Click on this image to see a post about why it might not be such a bad idea to allow gay parents to marry.


With the rulings of both Proposition 8 and DOMA in front of the Supreme Court going in favor of gay marriage equality I have found myself reflecting on the debate as I’ve remembered it over the last few months and years. I personally wish that my home state of Oklahoma would come out of left field and ‘stick it to the federal government’ by legalizing same sex marriage, as a way to say that the government needs to stay out of people’s business and allow them as much freedom as possible, and as a channel to capitalize on the economic benefits that would surely come from being the only state in the area to take such an action. I mean, it is a very pro business state…

On March 26, 2013 during an Oral Argument in Hollingsworth vs. Perry (the supreme court case about the constitutionality of Proposition 8, which banned same sex marriage in California) Justice Antonin Scalia made a statement that I have heard repeated multiple times by conservative pundits as the big ‘zinger’ in this hearing season on this issue. They seem to repeatedly forget to mention the response that immediately followed Justice Scalia’s comment. The exchange went like this:


JUSTICE SCALIA: I’m curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? Sometimes after Baker, where we said it didn’t even raise a substantial Federal question? 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?


What Mr. Olson was referring to in the case of interracial marriage was the case of Loving vs Virginia, which there has been much news and media about since ever since it happened in 1967. I would imagine that the stories that we will be hearing over the next few days, weeks, and years might look something like this to our children and grandchildren. Ultimately whether it feels like it or not this seems to be the civil rights/liberties issue of our time, so think long and hard about what it means to you to desire a discriminatory government.