The defenders of homosexual marriage continue to equate it with interracial marriage.
Here is a blurb from an exchange between Justice Scalia and Ted Olson:
JUSTICE SCALIA: 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? 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. 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.
1.) Inasmuch as Scalia agrees concerning the evolution of interracial marriage from illegality to legality I’m not sure how Scalia can disagree that social evolution continues so as to include sodomite marriage. I mean, if the 14th amendment made a illegality a legality why can it not be determined that the 14th amendment also allows for the next step forward in the evolutionary cycle?
2.) Note that Olson’s invoking of the “evolutionary cycle” as a grounds for ever changing law reminds us that, it is the case now in the West, that law has no stable meaning. Law is no longer a transcendent category that is to be only recognized but never invented. This admission by Olson is a explicit embrace of the idea that we are ruled by men and not by laws.
3.) In the area of Law men like Christopher Columbus Langdell, Roscoe Pound, Oliver Wendell Holmes Jr. and Benjamin Cardozo moved the discipline of law away from its Biblical moorings evinced in Puritan Commonwealth documents like “Abstract of the Laws of New England,” towards standards that evinced a humanistic, evolutionary, naturalistic and Statist paradigm. In the late 1800’s Langdell did yeoman’s work moving law training away from a century of Lawyers in America concentrating on what the Constitution said to Darwinian inspired notions of where the law was perceived to be moving (case law training). By Langdell’s work the Constitution came to be seen to be evolving under the guidance of an imperial judiciary.
4.) With the law ever moving in a “evolutionary cycle” this means that yesterday’s criminals are tomorrow’s innovators in the law. In this worldview criminals are only those who are now where the rest of society will one day be. Criminals are the moral and legal harbingers of the next evolutionary cycle in the law.
In another exchange we hear Justice Roberts,
“Counsel, I’m not sure it’s necessary to get into sexual orientation to resolve the case. I mean, if Sue loves Joe and Tom loves Joe, Sue can marry him and Tom can’t. And the difference is based upon their different sex. Why isn’t that a straightforward question of sexual discrimination?”
To which we would answer,
Your Honor, it is only sexual discrimination if you think the definition of Marriage as between one man and one woman is itself discriminatory. But, I would add, your Honor, that should we conclude that Marriage is discriminatory because it allows only for one man and one woman, we have needs likewise conclude that the fact that only a man can impregnate a woman is discriminatory against women and the fact that only women can conceive children is discriminatory against men.
