As everyone knows at this point from the endless and constant media coverage, the Supreme Court is holding oral arguments on the issue marriage equality, with both DOMA and Prop 8 up for decisions. Although most people might be surprised by the inane (if not offensive) questions posed by Justice Scalia, seasoned observers of the Supreme Court were surprised by how restrained he was. After all, this is the same man who called voting rights was an “entitlement”, thereby securing his reputation as a bigot.
In a day full of highlights in the absurd and comical, Justice Scalia did provide the attorneys the ultimate softball question… which they promptly fouled off. Justice Scalia was demanding to know when prohibiting same sex marriages became unconstitutional. The answer of course is that it was always unconstitutional. Prohibiting any American from marrying has always been contrary to the Constitutional framework of individual liberty. Just because it had never been questioned until now, does not mean it was permissible at any time in the past. Denying former slaves and women the right to vote was also unquestioned for decades, but were also found to be unconstitutional eventually. Not that the question was relevant to any constitutional issue. Scalia, I suspect, was trying to make a point that allowing same sex marriages was somehow a “fad”, the same way he considers Suffrage was a fad.
The whole issue of same sex marriage is serving to expose the reactionary nature of Scalia, Alito and Thomas. These are men who claim to want to limit the role of government in our lives, except when it concerns their own prejudices.