Yes, that’s right. Scalia said it yesterday, at the argument on the constitutionality of California’s Prop. 8. He also said that the right to bear arms doesn’t, after all, preclude the federal government and the states from enacting gun-ownership restrictions as they wish, so the recent Court opinions holding otherwise were decided incorrectly. And we now know that the Court will uphold Texas’s college-admissions affirmative action law as constitutional and that the Scalia will join in the opinion.
Here’s the lengthy exchange between him and Ted Olson, the lawyer for the same-sex couples who challenged the constitutionality of 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?
MR. OLSON: When the — when the California Supreme Court faced the decision, which it had never faced before, is — does excluding gay and lesbian citizens, who are a class based upon their status as homosexuals — is it — is it constitutional -
JUSTICE SCALIA: That — that’s not when it became unconstitutional. That’s when they acted in an unconstitutional matter — in an unconstitutional matter. When did it become unconstitutional to prohibit gays from marrying?
MR. OLSON: That — they did not assign a date to it, Justice Scalia, as you know. What the court decided was the case that came before it - JUSTICE SCALIA: I’m not talking about the California Supreme Court. I’m talking about your argument. You say it is now unconstitutional.
MR. OLSON: Yes.
JUSTICE SCALIA: Was it always unconstitutional?
MR. OLSON: It was constitutional when we - as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that -
JUSTICE SCALIA: I see. When did that happen? When did that happen?
MR. OLSON: There’s no specific date in time. This is an evolutionary cycle.
JUSTICE SCALIA: Well, how am I supposed to know how to decide a case, then -
MR. OLSON: Because the case that’s before you -
JUSTICE SCALIA: — if you can’t give me a date when the Constitution changes?
MR. OLSON: — in — the case that’s before you today, California decided — the citizens of California decided, after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California, and then the Californians decided in Proposition 8, wait a minute, we don’t want those people to be able to get married.
CHIEF JUSTICE ROBERTS: So — so your case — your case would be different if Proposition 8 was enacted into law prior to the California Supreme Court decision?
MR. OLSON: I would make — I would make the — also would make the — that distinguishes it in one respect. But also — also — I would also make the argument, Mr. Chief Justice, that we are — this - marriage is a fundamental right and we are making a classification based upon a status of individuals, which this Court has repeatedly decided that gays and lesbians are defined by their status. There is no question about that.
JUSTICE SCALIA: So it would be unconstitutional even in States that did not allow
civil unions?
MR. OLSON: We do, we submit that. You could write a narrower decision.
JUSTICE SCALIA: Okay. So I want to know how long it has been unconstitutional in those -
MR. OLSON: I don’t — when — it seems to me, Justice Scalia, that -
JUSTICE SCALIA: It seems to me you ought to be able to tell me when. Otherwise, I don’t know how to decide the case.
MR. OLSON: I — I submit you’ve never required that before. When you decided that — that individuals — after having decided that separate but equal schools were permissible, a decision by this Court, when you decided that that was unconstitutional, when did that become unconstitutional?
JUSTICE SCALIA: 50 years ago, it was okay?
MR. OLSON: I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.
JUSTICE SCALIA: I can’t either. That’s the problem. That’s exactly the problem.
MR. OLSON: But what I have before you now, the case that’s before you today, is whether or not California can take a class of individuals based upon their characteristics, their distinguishing characteristics, remove from them the right of privacy, liberty, association, spirituality, and identity that - that marriage gives them. It — it is — it is not an answer to say procreation or anything of that nature, because procreation is not a part of the right to get married.
“Baker”–as in, “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?”–refers to a 1972 case called Baker v. Nelson, which, as Linda Greenhouse explained last week in a terrific column in the New York Times, involved a challenge to the constitutionality of Minnesota’s bar to same-sex marriage was unconstitutional. Under a federal statute that was repealed in (I believe) 1986 at the specific request of William Rehnquist, the Supreme Court was required to consider all cases involving federal constitutional issues in which the immediate lower court was a state (rather than a federal) court of appeals. So in Baker, the Court summarily ruled in a pro forma single sentence without briefing, much less oral argument, that the case failed to raise a substantial question of federal law. I.e., there was no constitutional right of same-sex couples to marry.
Which leads me right into a question that I hope the Dem-appointed justices ask in their dissents in Fisher v. University of Texas, the affirmative action case argued at the Court earlier this term: When, exactly, did it became unconstitutional for a state university to consider race in its admissions process? 1791? 1868, when the Fourteenth Amendment was adopted? Some time after Bollinger v. Grutter in 2003, when although the Court did say the issue presented a substantial question of federal law, the Court also said that race was, like other criteria beside academic qualifications (such as regional demographics and such as “legatee” considerations), constitutionally permissible?
And I hope that the next time a state such as Montana enacts a stringent campaign-finance law, Scalia himself will ask the Koch brothers, or the Citizens United organization, or whoever is the naked plaintiff in the case, when exactly such laws became an unconstitutional violation of the First Amendment’s speech clause. 1791? 1868, when the Fourteenth Amendment was adopted? Was it sometime after 1912, when Montana enacted the statute that the Supreme Court last June summarily held was unconstitutional under the Citizens United opinion, which was not issued shortly after 1781 or 1868 but instead in 2010?
These are easy questions. The lawyers for the challengers of these laws should have an easy time answering them. The answer, of course, being that “originalism” can be, and is, turned on and off like a water faucet by those who subscribe to it as a legal theory when the weather is fair.
