The demise of Intrade.com (link no longer available) has deprived degenerates who will gamble on anything—and other degenerates who link to them—of the opportunity to wager on the outcome of Hollingsworth v. Perry, the case testing the constitutionality of California’s Proposition Eight, which banned same-sex marriage. But had it remained in operation, the odds likely would have run about even, with all eyes fixed on the great unknown: Justice Kennedy. Both facts—the even odds and the unknown on whom they rest—are problems. The even odds imply unpredictability in the law, and the unpredictability of Justice Kennedy’s jurisprudence, in turn, suggests a false complexity of constitutional jurisprudence that places it beyond the grasp of mortals and in the hands of a mysterious priesthood whose decisions require divination. However one wants the case resolved, it should not be decided like this.
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.”