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Will Scalia’s words cement same-sex marriage into the law?

August 22, 2014 by Scott Bomboy


Supreme Court Associate Justice Antonin Scalia opposes same-sex marriage, but in a twist of fate his own words could make the unions a reality if the issue makes it back to the high court.

scalia300Scholar Garrett Epps is the latest person to look at the “Scalia effect” on 12 rulings in courts that temporarily overturned gay marriage bans in different states.

The Supreme Court could take one, if not more, of these cases sometime in its next term, which starts in October. The Court delayed on Wednesday same-sex marriages from taking effect in Virginia as it considers petitions.

Epps argues that Scalia’s influence on the Court started to wane after he wrote his very famous dissent in United States v. Windsor in June 2013 – the case that struck down the Defense of Marriage Act.

“For a quarter of a century, Scalia has been the conservative wing’s alpha dog. By June of 2014, that seemed to have changed,” Epps said in a commentary for The Atlantic.

While the lessening of Scalia’s influence is certainly debatable, the prevalence of Scalia’s words in recent court opinions that support gay marriage isn’t.

Epps says that judges quoted Scalia in about half of the 12 recent decisions that struck down same-sex marriage bans. That could be a conservative estimate, as Constitution Daily looked at many of the decisions that came down in federal courts based in the 12 states.

The key Scalia quote referenced in some of these recent decisions comes from his Windsor dissent.

“The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare ... desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia said in 2013.

Justice Anthony Kennedy, who wrote the majority Windsor opinion, explicitly said the Court’s decision wasn’t ruling on same-sex marriage as a constitutional right. Scalia didn’t buy that argument in his dissent.

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here,” Scalia said. “The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”

Another Scalia dissent quote dates back to 2003, from his opinion in the landmark Lawrence v. Texas decision.

“[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry,” Scalia wrote in 2003, in his criticism of the Court’s majority decision. “What justification could there possibly be for denying the benefits of marriage to homosexual couples?”

Scalia also criticized in Lawrence a concurrence from Sandra Day O’Connor that includes two words that keep appearing in the recent decisions striking down same-sex marriage bans: moral disapproval.

And so far, judges based in the states seem to be agreeing with Scalia’s logic but using it to support the same-sex marriage cause.

In Arkansas, Idaho and Florida, judges quoted directly from Scalia’s Lawrence dissent and his use of the words “moral disapproval” to support the end of same-sex marriage bans.

John G. Heyburn, a federal judge in Kentucky, analyzed Scalia’s Windsor comments at length in his decision striking down Kentucky’s same-sex marriage ban.

U.S. District Judge Terence Kern in Oklahoma referenced part of Scalia’s dissent in Windsor as supporting the same-sex marriage argument, quoting Scalia’s comment that the Windsor majority decision “arms well every challenger to a state law restricting marriage to its traditional definition.”

In Utah, U.S. District Judge Robert Shelby directly said Scalia’s logic led him to conclude that state’s gay-marriage ban is unconstitutional.

"The court agrees with Justice Scalia’s interpretation of Windsor," Shelby said, "and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law."

A federal judge in Virginia, Arenda Wright Allen, said the argument for striking down same-sex marriage bans was “described eloquently” by Scalia in his Windsor dissent.

In Pennsylvania, Judge John E. Jones III from U.S. District Court for the Middle District of Pennsylvania said "as Justice Scalia cogently remarked in his dissent, ‘if [Windsor] is meant to be an equal-protection opinion, it is a confusing one.’”

In Ohio, federal district judge Timothy Black saw Scalia as a prophet. “And now it is just as Justice Scalia predicted -- the lower courts are applying the Supreme Court’s decision, as they must, and the question is presented whether a state can do what the federal government cannot -- i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no,” Black said.

And in a June decision from federal district judge Barbara Crabb in Wisconsin, Scalia’s name is mentioned 12 times. Crabb cites Scalia’s logic in the Lawrence and Windsor decisions.

“On its face, Windsor does not apply to state law bans on marriage between same-sex couples. ... However, as noted by Justice Scalia in his dissent, it is difficult to cabin the Court’s reasoning to DOMA only,” Crabb says, making the argument that Scalia’s logic clearly leads to a conclusion that same-sex marriage bans can’t be upheld at a state level.

For now, all eyes are on an upcoming ruling in the Sixth Circuit appeals court, where arguments were heard earlier this month about gay-marriage bans in Kentucky, Michigan, Ohio and Tennessee. With two of the three judges appointed by Republican presidents, there is a possibility that the bans will be upheld in those states, accelerating the issue to the Supreme Court.

At that point, Justice Scalia will get a chance to write another opinion of some type about the issue. Whether he quotes his own words again from the lower court opinions remains to be seen.

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