JUSTICE SCALIA: You -- you've led me right into a question I was going to ask. . . . I'm curious, when -when did -- when did it become unconstitutional to exclude homosexual couples from marriage? 1791? 1868, when the Fourteenth Amendment was adopted? . . .

MR. OLSON: Well, according to your dissent in Lawrence v. Texas, the Court decided that issue in 2003.

The simple answer to Justice Scalia is that laws banning same-sex couples from marrying were unconstitutional the moment when the American people, in 1868, wrote the guarantee of equality for all persons into the Constitution. As the exchange this morning demonstrates, Justice Scalia seems to accept this proposition with respect to laws prohibiting couples from different races from marrying one another, which the Supreme Court found unconstitutional in the late 1960s. He should acknowledge the same constitutional truth in the Prop. 8 case. The text of the Equal Protection Clause of the Fourteenth Amendment makes clear that the freedom to marry should be equally available to all, whether black or white, heterosexual or gay, rich or poor.