Hollingsworth v. Perry & U.S. v. Windsor

At the reasonable request of Dr. X, let’s discuss the arguments in the same-sex marriage cases.

Hollingsworth is the case reviewing the constitutionality of California’s Proposition 8, and Windsor is the case reviewing the constitutionality of DOMA.

Here is the transcript for the oral arguments in Hollingsworth, and of course responses are all over the internet. I’ll update this post with a link to the transcript for oral arguments in Windsor, when that becomes available.

Any thoughts? So far my favorite response is from Michael Drew, who sometimes joins us here. Over at the League of Ordinary Gentlemen, he responded to Scalia’s question about when it became unconstitutional to ban SSM, 1791, 1868?? with,

“1868, Your Honor; it’s just that now is when we’ve gotten around to litigating it.” I think that’s about the best, truest, answer (from a particular approach to constitutional interpretation, anyway) there is.

Y’all’s thoughts?

UPDATE: Here is the transcript for the DOMA hearing.

About James Hanley

James Hanley is former Associate Professor of Political Science at Adrian College and currently an independent scholar.
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7 Responses to Hollingsworth v. Perry & U.S. v. Windsor

  1. Dr X says:

    If we were too imagine Scalia’s response, what might it be?

  2. Dr X says:

    For example: not in the text or not original intent or some such thing?

  3. James Hanley says:

    Scalia focuses a lot on public understanding at the time, and historical longevity of an idea. So I’d say that he’d object that it couldn’t be a correct response since that’s not what they thought back then….but if he loses in this case, you could resurrect him 150 years from now and he’d admit that at least by that time it had become unconstitutional to ban SSM, because that had become the long tradition.

    But he’d damn sure understand the response.

  4. ppnl says:

    I have always wondered how Scalia would have ruled on Loving v. Virginia. When did mixed race marriages become a constitutional right? What next, a man marrying a turtle?!?

  5. Dr X says:

    ppnl on Scalia:
    “What next, a man marrying a turtle?!?”

    Yes, I think he’d have gone with that or: if we concede a civil right to interracial marriage, then we concede the field of marriage to men and sheep, sheep and badgers, badgers and monkeys, monkeys and hyenas.

    And you think seating charts for weddings are a headache now? Just you wait and see what happens if we go down that interracial road.

    Justice Slamito?

    Well, what scares me is that we haven’t identified the possible dangers of black and white marriages. While I don’t share Justice Scalia’s greatest fears, you know, this could lead to brother-sister or mother-sister marriage marriage or maybe encourage intermarriage with Budhists and Catholics. There’s just no research to tell us that any of this is safe.

  6. ppnl says:

    Well you have to admit that Buddhists and Catholics are going a bit far.

    Anyway Ed Brayton posted about the subject:


    Scalia is clearly constructing an argument to get the preconceived correct result. And a bad argument at that. I suspect that thirty years from now some originalist would be able to construct an originalist argument for gay marriage. It is interesting that what is or isn’t originalism depends more on present societal norms than past societal norms.

    When you are dealing with a 200 year old document that is only a few kilobytes long originalism isn’t really an option anyway.

  7. Troublesome Frog says:

    My wife and I did the Buddhist / Catholic wedding thing. It required a little bit of thought, but it was definitely made easier by a pretty mellow older generation. Not sure I would have wanted to do that one fifty years ago.

    And of course, 65 years ago, it would have been illegal. How things change.

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