Perhaps he was just playing devil’s advocate, but Supreme Court Justice Antonin Scalia appeared to warm a few hearts on the religious right Tuesday when he asked attorney Theodore Olson, “When did it become unconstitutional to exclude homosexual couples from marriage?”
The exchange came as the high court heard the first of two cases on gay marriage with a second hearing planned for Wednesday.
Scalia, who has been the most outspoken opponent of gay rights on this court, began the exchange with Olson by saying, “we don’t prescribe law for the future.”
Olson, a Republican, who served in the George W. Bush administration as solicitor general, asserted: "It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control. There is no specific date in time. This is an evolutionary cycle."
Scalia appeared to be arguing that when the institution of marriage developed historically, it was not done with the explicit intent of excluding gay and lesbian couples, a position that appeared consistent with the majority of justices, reported Business Insider.
"Well, how am I supposed to decide a case, then, if you can't give me a date when the Constitution changes?" Scalia asked, according to the publication.
"Because in the case that's before you today, the citizens of California decide — after the California Supreme Court decided that individuals had a right to get married irrespective of their sexual orientation in California — then the Californians decided in Proposition 8, 'wait a minute, we don't want those people to be able to get married.' "
Wednesday’s proceedings are expected to focus on a narrower question of whether the federal government may deny benefits to married same-sex couples that are allowed their opposite-sex counterparts.
Reuters contributed to this report.
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