Yet the liveliest moments came when Scalia asked Ted Olson, President George W. Bush's solicitor general and the lawyer for the two same-sex couples challenging Prop 8, "When did it become unconstitutional to exclude homosexual couples from marriage? 1791 [when the Bill of Rights was ratified]? 1868, when the 14th Amendment was adopted?"
Olson pushed back against Scalia's originalist view, asking him in return, "When did it become unconstitutional to prohibit interracial marriages?"
"It's an easy question," Scalia said. "At the time that the equal protection clause was adopted. That's absolutely true. But don't give me a question to my question."
"There's no specific date in time," Olson ultimately answered. "This is an evolutionary cycle."
Read more @: Supreme Court Proposition 8 Case Arguments Cast Doubt On Gay Marriage Ban
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