What Antonin Scalia Got Right About Same-Sex Marriage

A judge in Pennsylvania is the latest to cite Scalia while recognizing same-sex marriage rights.

Supreme Court Justice Antonin Scalia takes part in an interview with Chris Wallace on 'FOX News Sunday' at the FOX News D.C. Bureau on July 27, 2012.
National Journal
Sam Baker
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Sam Baker
May 20, 2014, 1:02 p.m.

State bans on same-sex mar­riage are fall­ing like dom­in­oes in the courts — just as Su­preme Court Justice Ant­on­in Scalia pre­dicted.

A fed­er­al judge in Pennsylvania struck down the state’s ban on same-sex mar­riages Tues­day, writ­ing, “We are a bet­ter people than these laws rep­res­ent, and it is time to dis­card them in­to the ash heap of his­tory.”

It’s the 14th con­sec­ut­ive leg­al vic­tory since the Su­preme Court’s land­mark mar­riage rul­ings last year, ac­cord­ing to the As­so­ci­ated Press.

The Su­preme Court’s rul­ings last year didn’t say that states must re­cog­nize same-sex mar­riage. But lower-court judges have taken note of the Su­preme Court’s reas­on­ing and rhet­or­ic, strik­ing down state mar­riage laws even on grounds the Su­preme Court didn’t quite reach.

Scalia, who says there’s no right to same-sex mar­riage, prob­ably hates it. But he did call it.

When the Su­preme Court in­val­id­ated part of the De­fense of Mar­riage Act last year, it said that same-sex couples can’t be denied fed­er­al be­ne­fits — but that it was leav­ing state mar­riage laws alone. Scalia, though, openly mocked that pro­pos­i­tion in an angry dis­sent, ar­guing that the way the Court’s DOMA opin­ion was writ­ten, lower courts would surely use it to strike down state laws re­strict­ing the right to marry.

“By form­ally de­clar­ing any­one op­posed to same-sex mar­riage an en­emy of hu­man de­cency, the ma­jor­ity arms well every chal­lenger to a state law re­strict­ing mar­riage to its tra­di­tion­al defin­i­tion,” Scalia wrote in his dis­sent last year.

On Tues­day, Judge John Jones — a Re­pub­lic­an ap­pointee — spe­cific­ally cited Scalia’s dis­sent in his de­cision strik­ing down Pennsylvania’s mar­riage law.

Here’s Scalia’s pre­dic­tion:

Hence­forth those chal­lengers will lead with this Court’s de­clar­a­tion that there is “no le­git­im­ate pur­pose” served by such a law, and will claim that the tra­di­tion­al defin­i­tion has “the pur­pose and ef­fect to dis­par­age and to in­jure” the “per­son­hood and dig­nity” of same-sex couples…. The ma­jor­ity’s lim­it­ing as­sur­ance will be mean­ing­less in the face of lan­guage like that, as the ma­jor­ity well knows.

And here’s Jones’s rul­ing in Pennsylvania:

“As Justice Scalia co­gently re­marked in his dis­sent, “if [Wind­sor] is meant to be an equal-pro­tec­tion opin­ion, it is a con­fus­ing one.”¦ Wind­sor found DOMA un­con­sti­tu­tion­al be­cause “no le­git­im­ate pur­pose over­comes the pur­pose and ef­fect to dis­par­age and to in­jure.”

Scalia’s biggest beef with the Court’s rul­ing on DOMA was that, in his view, it fudged on its spe­cif­ic leg­al ra­tionale. The ma­jor­ity, led by Justice An­thony Kennedy, avoided the most sweep­ing pro­clam­a­tions of a con­sti­tu­tion­al right to marry, be­cause that would have dir­ectly im­plic­ated state mar­riage laws as well.

The Court’s leg­al reas­on­ing may have been murky, but the rhet­or­ic de­scrib­ing DOMA as dis­crim­in­a­tion for the sake of it was crys­tal clear.

So while lower-court judges haven’t dis­agreed with Scalia that the Su­preme Court’s DOMA rul­ing was vague, they do still dis­agree on the fun­da­ment­al ques­tion of wheth­er same-sex couples can marry — and they’re re­cog­niz­ing that the Su­preme Court gave its stamp of ap­prov­al, leg­al con­fu­sion not­with­stand­ing.

“There is no pre­cise leg­al la­bel for what has oc­curred in Su­preme Court jur­is­pru­dence “¦ but this Court knows a rhet­or­ic­al shift when it sees one,” an Ok­lahoma judge wrote in a de­cision strik­ing down that state’s ban earli­er this year.

If Scalia’s 2013 pre­dic­tions con­tin­ue to hold, it won’t be long be­fore mar­riage equal­ity is back be­fore the Su­preme Court — and then be­comes leg­al in all 50 states.

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