THE BLOG
04/03/2013 06:08 pm ET | Updated Jun 03, 2013

Supreme Court Justices Pose Two Strange Questions in Same-Sex Marriage Cases

The Supreme Court in hearing argument in the same-sex marriage cases posed two questions that I doubt were ever asked before:

  • When did something become unconstitutional? (Justice Scalia)
  • Shouldn't there being a waiting period before deciding constitutionality? (Justice Alito).

Justice Scalia, in insisting that counsel specify a date said: "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?"

Mr. Olson in a rhetorical response gave one of a thousand valid responses:

"When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"

But Justice Scalia reiterated the importance of fixing a date.

"Well, how am I supposed to decide a case, then, if you can't give me a date when the Constitution changes?"

Did Justice Scalia or anyone else on the Court ask when the ban on corporate political spending became unconstitutional (Citizens United)? Is it necessary to determine the precise moment something becomes unconstitutional in order to declare it such? Changing technology and evolving mores raise modern constitutional issues. It is not a "change in the Constitution" as Justice Scalia suggests, but rather a change in the times. What passes as tradition is often discovered to be nothing but bigotry in disguise. Efforts to rectify those constitutional violations may be recent or late in coming, but fixing the date the rights are created hardly seems essential to their disposition.

According to its own history, something becomes unconstitutional when the Supreme Court says that it is. But if Justice Scalia requires a specific time, he need look no further than his 2003 dissent in Lawrence v. Texas, in which he predicted that following that decision there could no possible justification "for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution." Whether or not depriving gays and lesbians of the right to marry and the benefits derived therefrom violates the Constitution can be decided by the Court if this is the first day that it has ever been raised or if the issue has been gestating for generations.

Likewise, did anyone suggest that before we let corporations fund our election system, that it might be wise to wait and see what effect that might have on corrupting the system. Since when is there supposed to be some cooling off or trial period before deciding constitutionality, or as in this case, whether or not a group has been denied equal protection of the law? Judge Alito said:

"Traditional marriage has been around for thousands of years. Same-sex marriage is very new. I think it was first adopted in The Netherlands in 2000. So there isn't a lot of data about its effect. And it may turn out to be a -- a good thing; it may turn out not to be a good thing, as the supporters of Proposition 8 apparently believe.

But you want us to step in and render a decision based on an assessment of the effects of this institution, which is newer than cell phones or the Internet? I mean we -- we are not -- we do not have the ability to see the future. On a question like that, of such fundamental importance, why should it not be left for the people, either acting through initiatives and referendums or through their elected public officials?"

The answer simply is that decisions regarding constitutionality are left to the Court -- not the public -- not even the majority. The "people" might want prayer in the schools, segregation, bans on books, the end of Miranda warnings, a prohibition against inter-racial marriage and even slavery, but the will of the majority is always subject to the limits of the Constitution.

Having listened to oral arguments for over 17 years, I am a great believer in their importance. Questions and their answers can help crystallize the issues, resolve doubts and aid in the final decision. However, when it comes to the Constitution, in order to determine validity, we need not know when something became unconstitutional nor await the discovery of some future evidence which may serve to justify its violation. There may be some practical, procedural and principled reasons to delay resolving the ultimate question of the right to same -sex marriage, but no similar impediment exists to declaring unconstitutional the denial of federal benefits to those who have married and ending the legalized bigotry that denial represents.