A 5th Amendment 'right' to same-sex marriage?

"I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791 [when the Fifth Amendment was adopted]? 1868, when the 14th Amendment was adopted?

~ Justice Antonin Scalia

On March 26, during oral argument in Hollingsworth v. Perry, the controversial same-sex marriage case, Justice Scalia repeatedly questioned attorney Ted Olson on when restricting marriage to one man-one woman became unconstitutional. From the transcript:

JUSTICE SCALIA: I'm curious, when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the 14th Amendment was adopted? Sometimes after Baker, where we said it didn't even raise a substantial Federal question? When did the law become this?

MR. OLSON: When – may I answer this in the form of a rhetorical question? When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?

JUSTICE SCALIA: It's an easy question, I think, for that one. At the time that the Equal Protection Clause was adopted. That's absolutely true. But don't give me a question to my question. When do you think it became unconstitutional? Has it always been unconstitutional? ...

MR. OLSON: It was constitutional when we as a culture determined that sexual orientation is a characteristic of individuals that they cannot control, and that that –

JUSTICE SCALIA: I see. When did that happen? When did that happen?

MR. OLSON: There's no specific date in time. This is an evolutionary cycle.

Olson wasn't inclined to give a specific date or window of dates in response to Justice Scalia's question. But Volokh Conspiracy readers have: Results of the VC reader poll from 2010 on when same-sex marriage became unconstitutional (at least among those who think it is currently unconstitutional) is available here.

As a black man and a blacklisted academic for 30 years, it was especially galling to me to hear "conservative" Olson's reply to Scalia's question using this sophistic argument: "When did it become unconstitutional to prohibit interracial marriages? When did it become unconstitutional to assign children to separate schools?"

This is how I would counter Olson's arguments:

Since on any level (scientific, legal, moral) there isn't any innate differences between blacks and whites (or any race), discrimination or policies enacted based on these non-differences is both irrational and unconstitutional. However, there is ample scientific, legal, moral and practical differences between men and women.
Miscegenation laws (e.g., Loving v. Virginia [1969], et. al.) were discriminatory and unconstitutional, although they existed in America for over 200 years. They violated Natural Law and the lofty guarantees in the Declaration of Independence, which promised that "All men are created equal."
It would have been anathema for the civil rights movement and Dr. King, a Christian minister, a Republican and a strong Natural Law advocate, to march, bleed and die for "gay rights" or "same-sex marriage" in the 1950s and '60s. This is shameless historical revisionism by the left. Even the Civil War amendments – the 13th, 14th and 15th – were enacted between 1865-1870 to realize the original intent of the constitutional framers that "All men are created equal." These amendments had nothing to do with sex, marriage or gender.

What liberals, socialists and progressives understand all too well and conservatives, libertarians, observant Jews and Christians don't seem to care that much about anymore is once you separate legality from morality (God) you put society on an irrevocable slide into the abyss.

Robert A. Levy, chairman of the libertarian Cato Institute, wrote an interesting essay on same-sex marriage in 2010. Here is an excerpt:

Whenever government imposes obligations or dispenses benefits, it may not "deny to any person within its jurisdiction the equal protection of the laws." That provision is explicit in the 14th Amendment to the U.S. Constitution, applicable to the states, and implicit in the Fifth Amendment, applicable to the federal government.

Of course, government discriminates among its citizens all the time. By the 1920s, 38 states prohibited whites from marrying blacks and certain Asians. Until 1954, all states were allowed to operate segregated schools. Thankfully, the Supreme Court invalidated both interracial marital restrictions and school segregation. The court applied the plain text of the Equal Protection Clause despite contrary practices by the states for many years even after the 14th Amendment was ratified in 1868.

To pass constitutional muster, racial discrimination had to survive "strict scrutiny" by the courts. Government had to demonstrate a compelling need for its regulations, show they would be effective and narrowly craft the rules so they didn't sweep more broadly than necessary. That same regime should apply when government discriminates based on gender preference.

Here, Levy is absolutely wrong! Anyone – conservative, leftist, atheist, pagan or statesman – who conflates racial discrimination in marriage, education, or employment with gender or sex is ignorant of both history and constitutional law. The Constitution, the Bill of Rights, the Abolitionist movement, the Civil War, the Civil War Amendments, Reconstruction, nor Jim Crow, the 1964 Civil Rights Acts or affirmative action had anything to do with the Lesbian, Gay, Bisexual, Transgender movement.

Being black isn't a sin; being LGBT is a sin and violates many Bible precepts and the original intent of the framers. Perhaps Fox News host Bill O'Reilly would call me a "Bible thumper," which I consider a vile, reactionary stereotype, yet O'Reilly must learn that all discrimination isn't invidious or unlawful. Some discrimination is required to keep society from imploding.

Black Americans are collectively the beneficiaries of the blood, suffering and death MLK and the civil rights movement bore to fulfill Jefferson's Declaration, yet over the past 40 years Black America has squandered this sacred inheritance because we allowed LGBT activists and other disparate groups to pervert the Bill of Rights and the 14th Amendment due process clause by glomming onto the black civil rights moral crusades of the 1950s and '60s, which historically were rooted in God, biblical theism, Natural Law and constitutional liberty. This treachery is especially outrageous on the 45th anniversary of Dr. King's assassination.

Is there a legitimate Fifth Amendment "right" to same-sex marriage? No. If America continues to allow an oligarchy of leftist, renegade judges using a Darwinian, atheist, evolutionary, "living constitution" paradigm to pervert the Constitution against itself, then the Constitution has become meaningless to uphold biblical principles and protect liberty, yet perfectly germane to social deconstruction and voluntary slavery.