Denying same-sex marriage as a right, never before recognized, is not unconstitutional

Antonin Scalia held the country’s attention for a few crucial moments on Tuesday morning and asked all of us, not just Ted Olsen, to come up with an answer to the $64,000.00 question: When, exactly, did it become discriminatory to keep gays and lesbians from marrying each other.

The following is a work of opinion submitted by the author.

On Tuesday morning, Antonin Scalia put the focus on whether the Supreme Court could, by judicial fiat, create a right to same-sex marriage when he engaged in the following exchange with Theodore Olsen, attorney for the LGBT Plaintiffs:

Justice Scalia: I’m curious, when — when did — when did it become unconstitutional to exclude homosexual couples from marriage?

Mr. Olsen: It was unconstitutional 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?

Mr. Olsen: 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 if you can’t give me a date when the Constitution changes?

Ignore all of that Bible thumping about homosexuality being immoral (whether you believe it to be or not). Ignore the heartfelt pleas of gays and lesbians who just want to have their love respected. Ignore the rhetoric about marriage “equality’ when what we are really talking about is not parity but, rather, a preference for those with the loudest cheering section.

Antonin Scalia held the country’s attention for a few crucial moments on Tuesday morning and asked all of us, not just Ted Olsen, to come up with an answer to the $64,000.00 question: When, exactly, did it become discriminatory to keep gays and lesbians from marrying each other.

Unfortunately for the LGBT community and their many supporters, Olsen could only stammer out this rather weak reply: “I — I can’t answer that question, and I don’t think this Court has ever phrased the question in that way.”

But regardless of whether the question has ever been asked “that way,” it needs to be answered “that way” for us to determine whether same-sex marriage is a fundamental right such that it must be enshrined in the Constitution. It must be answered “that way” if we are going to be consistent in our legal jurisprudence and avoid the mistakes made 40 years ago in Roe v. Wade when a group of judicial activists decided to mangle the democratic process and give women a spanking new right to abortion on a silver platter. It has to be answered “that way” if we can ever hope to obtain what the LGBT community truly wants from the general population: acceptance.

Because if Roe has taught us one thing, it is that you cannot cloak yourself in flimsy penumbras and constitutional ephemera and say “Here, here is your fundamental right that we just made for you, now go and be happy with it.”

Antonin Scalia is a wise man, and his wisdom is not the type that makes a lot of liberals happy. He is a conservative who believes that the words of the Constitution matter much more than the touchy-feely interpretations given to it by what I call the “legal psychics” that is, the people who can channel Madison and Hamilton and know exactly what they meant when they wrote our civic bible. Scalia asks the hard questions and is almost surgical in his attempts to get a relevant response.

That’s unfortunate for Ted Olsen, who is himself a wise man and who proved to be an able litigator in California when he fought the proponents of Proposition 8. He was able to convince Judge Vaughn Walker that there was no rational reason to prevent gays and lesbians from marrying each other. That was actually not too difficult, since Judge Walker, an openly gay man living with another openly gay man came to this conclusion: “The evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite-sex couples are superior to same-sex couples.”

Proposition 8 actually did no such thing, truth be told. It simply said that society had an interest in preferring heterosexual unions over all other ones, including polygamous, incestuous and homosexual. Apparently, Walker equated “there is no right to special treatment for gays and lesbians” with “we are discriminating against gays and lesbians.”

Scalia takes that assumption and asks the simple, potent question: When did it become unconstitutional to deprive someone of a right we never before recognized them as having? And those who support that as yet undetermined “right” are left stammering at the podium.

It is of course possible that the other justices on the court are not as demanding as the Italian Rapscallion. They might be more amenable to the siren song of “fairness” that has swept the land over the last few years, inviting us to find that love is the only true determinant of a good marriage and that society has no legitimate interest in limiting its parameters.

But for those few moments on Tuesday, I was proud to be an American, listening to a justice who knows what words really mean.