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View Diary: A point that should have been raised in DOMA arguments today (39 comments)

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  •  Scalia answered your question yesterday (0+ / 0-)
    Could the US government, say sometime before 1967, have had a law saying that the federal government would not recognize interracial marriages as valid, even where the state government did?
    There was an exchange in Tuesday's oral argument between Justice Scalia and Ted Olson (attorney for the plaintiffs fighting against Prop 8):
    JUSTICE SCALIA: ... 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.

    Scalia's answer is that the EPC made it unconstitutional when the 14th Amendment was adopted in 1868 (even though the SCOTUS didn't decide Loving until 1967).

    Scalia's implicit argument is that those who enacted the 14th Amendment intended to ensure equal protection on the basis of race, but never even thought of equal protection on the basis of sexual preference, thus (in Scalia's eyes) the constitution doesn't mandate equal treatment for gays and lesbians.

    It's a repulsive argument, in my view, but it's Scalia's argument.

    Please help to fight hunger with a donation to Feeding America.

    by MJB on Wed Mar 27, 2013 at 10:13:25 PM PDT

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    •  I really wish Olson had said something like this: (1+ / 0-)
      Recommended by:
      teacherken
      I believe you recognized that in your 2003 dissent in Lawrence v Texas, where you acknowledged that if Lawrence stood as precedent there could be no rational basis for a state to prohibit same-sex marriage.

      With mixed-race marriage it took the court 100 years to recognize that mixed-race couples had a 14th Amendment right to marry.   Hopefully the court will act with greater alacrity this time to correct a clear violation of equal protection.

      •  That's a good point, but... (1+ / 0-)
        Recommended by:
        skrekk

        ... remember that, at the oral argument, Olson is not trying to win a debate with Scalia.  Olson's task is only to try to persuade at least 5 justices (and Scalia will never be among that group) to do the right thing in Hollingsworth.

        Please help to fight hunger with a donation to Feeding America.

        by MJB on Thu Mar 28, 2013 at 09:50:08 AM PDT

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    •  Cons see the world in terms of the thing (0+ / 0-)

      acted upon (the object), rather than in terms of the agent (subject). The issue here isn't who's affected, but that our public servants are not supposed to determine the level of service based on some irrelevant characteristics of the recipients of their ministrations.
      The Cons see public corporations as entities that are superior to the citizenry (who are superior to non-citizens) because they are convinced that a heirarchy of authority is absolutely essention to society -- that, if there is not some ruling elite directing the affairs of man, there will be utter chaos. That the Constitution is like a cook book or operational manual designed to direct the behavior of the agents of government just doesn't register with them. Their prejudice tells them that governments are established to rule, not to deliver services to the public. If they even think of public service, it's in the context of coercing good behavior being good for the coerced -- at least to the extent of freeing them from the deficiencies of original sin by secular means.
      The Cons have convinced themselves that agents of government step in where religion has failed to impose restraints. Where do the agents get authority to do that? The Constitution gives it to them because, long ago, people gave their consent to be submissive to the end of time. The nation is a secular version of the kingdom of God.

      We organize governments to deliver services and prevent abuse.

      by hannah on Thu Mar 28, 2013 at 02:30:49 AM PDT

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