The following exchange during the Supreme Court argument on same sex marriage is concerning on a number of levels. In my humble opinion, mixing a discussion of human rights with cell phones is troubling.
1. 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?
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.
2. JUSTICE ALITO: You want us to assess the effects of same-sex marriage, the potential effects on — of same-sex marriage, the potential — the effects of Proposition 8. But what is your response to the argument which has already been mentioned about the need to be cautious in light of the newness of the — the concept of — of same-sex marriage. The one thing that the parties in this case seem to agree on is that marriage is very important. It’s thought to be a fundamental building block of society and its preservation essential for the preservation of society. 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.
SOLICITOR GENERAL: The principal argument in 1967 with respect to Loving and that the Commonwealth of Virginia advanced was: Well, the social science is still uncertain about how biracial children will fare in this world, and so you ought to apply rational basis scrutiny and wait. And I think the Court recognized that there is a cost to waiting and that that has got to be part of the equal protection calculus. And so — so I do think that’s quite fundamental.
There are 37,000 children in same-sex families in California now. Their parents cannot marry and that has effects on them in the here and now. A stabilizing effect is not there. When they go to school, they have to, you know — they don’t have parents like everybody else’s parents. That’s a real effect, a real cost in the here and now.