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.
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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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