At oral argument in Hollingsworth v. Perry, Justice Scalia challenged Theodore Olson as to when it became “unconstitutional to exclude homosexual couples from marriage?” Olson replied first with what he called a “rhetorical question,” viz., “When did it become unconstitutional to prohibit interracial marriages?” For Olson, the answer was clearly not 1868—the date of the Fourteenth Amendment’s ratification. Rather, he explained, in nullifying racial-endogamy laws, the Court in Loving v. Virginia (1967) had ventured into “unchartered waters” with reliance on “evolutionary” jurisprudence as a compass.
In making this claim, Olson is in good (and numerous) company. Prominent jurists have repeatedly declared the Court’s decision in Loving v. Virginia to be incompatible with the original sense of the Amendment. The judges include Justice Kennedy and his colleagues in Planned Parenthood v. Casey; Judge Reinhardt and the Ninth Circuit in Washington v. Glucksburg; numerous progressive scholars, including Jack Balkin, Michael Klarman, and William Eskridge; and even some prominent conservatives like Steven Calabresi and Hadley Arkes [on this blog].
But this belief, as Lincoln would say, represents one of those “assumed historical facts which are not really true.”