Ellis Washington Comes to Scalia’s Rescue

Ellis Washington Comes to Scalia’s Rescue April 12, 2013

After the oral argument in the Prop 8 case, I noted Justice Scalia’s rather incoherent question to Ted Olson asking “when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted?” Olson answered this with another question:

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?

This was a very good answer, as I noted, because it puts Scalia into a real bind. Because the question he asked would have been asked, with exactly the same authority, in both Loving v Virginia and Brown v Board of Education. In fact, can anyone doubt that Scalia would have asked that same question if he had been on the court when those cases were heard? But you see, Scalia can’t admit that now because he is on the record saying that he thinks those two cases were rightly decided, even though they are entirely contrary to the interpretive theory he has claimed to favor again and again.

Ellis Washington tries to come to Scalia’s rescue:

Since on any level (scientific, legal, moral) there isn’t any innate differences between blacks and whites (or any race), discrimination or policies enacted based on these non-differences is both irrational and unconstitutional. However, there is ample scientific, legal, moral and practical differences between men and women.

And why is this supposed to be relevant? That there are differences between men and women, which no one denies, does not in any way logically support the idea that we must prevent gay people from getting married. This is a classic non-sequitur.

Miscegenation laws (e.g., Loving v. Virginia [1969], et. al.) were discriminatory and unconstitutional, although they existed in America for over 200 years. They violated Natural Law and the lofty guarantees in the Declaration of Independence, which promised that “All men are created equal.”

Ah yes, Washington’s favorite invocation, “natural law,” which seems to mean whatever he wishes it to mean at any given time. The reality, of course, is that the advocates of miscegenation laws for those 200 years, and for centuries before that, argued that it was wrong precisely because it violated “natural law.” Because the concept of “natural law” is utterly incoherent; it can be made to mean anything you’d like it to mean.

Washington claims to be an originalist, but by any possible version of conservative originalism, the 14th Amendment cannot be used to invalidate laws against interracial marriage. One of the primary objections to the 14th Amendment was that the equal protection clause would invalidate such laws, but the framers of the amendment assured the public that it would not do that. Whether you prefer original intent, original public meaning or original expected application, you cannot make a conservative originalist case against miscegenation laws using the 14th amendment (though one can use Randy Barnett’s liberal originalism or Jack Balkin’s living originalism to reach such a result).

It would have been anathema for the civil rights movement and Dr. King, a Christian minister, a Republican and a strong Natural Law advocate, to march, bleed and die for “gay rights” or “same-sex marriage” in the 1950s and ’60s.

Even if this were true (and it’s not; see Bayard Rustin), so what? If a leader of the women’s suffrage movement were a racist, would that be an argument against later extended civil rights to black people? Of course not.

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