More on the Marriage Equality Cases

Sorry, I just can't help myself from commenting on the law, and I can't help myself from bashing Justice Scalia, so I figured I'd share. 

One Q&A that received some amount of attention this week was this exchange between Justice Scalia and Ted Olson:

JUSTICE SCALIA: I’m curious, ... when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? ...  

MR. OLSON: [M]ay 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 ... the time that the Equal Protection Clause was adopted [in 1868]. That’s absolutely true. But don’t give me a question to my question. When do you think it became unconstitutional? Has it always been 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.

This whole exchange is somewhat farcical. Obviously, Justice Scalia's position is that the Constitution never changes unless it is explicitly amended. So, segregation was unconstitutional in 1868, but we were just too stupid/ignorant/bigoted to realize it until 1954. This in general is a pretty silly way of looking at constitutional rights. First, what does it mean that certain civil liberties are "constitutional rights" except for the fact that the Supreme Court has recognized them as such? It's a metaphysical question, at best. Second, it seems pretty intuitive (to me, at least) that as culture, society, and technology changes, the content of constitutional rights can change as well.

But, I think the absurdity of Justice Scalia's line of questioning is really shown by the 1954 case Bolling v. Sharpe. Bolling was decided on the same day as Brown v. Board of Education, and it said that it was unconstitutional for the District of Columbia to have segregated schools. However, it is not obvious that Bolling follows directly from Brown.

To understand why this is a difficult question, consider the text of the Fourteenth Amendment: "No State shall...deny to any person within its jurisdiction the equal protection of the laws." So, Kansas can't segregate its schools, but Washington, DC isn't a state, so the 14th Amendment doesn't apply. However, the Supreme Court figured out a work-around. Relying on the controversial doctrine of substantive due process, the Court held that the 5th Amendment's right to "due process of law" by the federal government effectively guarantees equal protection of the laws.

In reality, Justice Scalia can't defend Bolling, because he doesn't believe in substantive due process. So, in a logical world, Justice Scalia would be forced to say that the federal government can discriminate against minorities all it wants. But, if we assume that Justice Scalia has broken his own rules and come to terms with the fact that Bolling is good law, then he would have to say that it has actually been unconstitutional for the federal government to have segregated schools since 1791. In fact, for 74 years, the federal government could constitutionally enforce slavery but not school segregation.

Huh?