In a bit of irony — and perhaps trolling — the federal judge who struck down Utah’s ban on gay marriage Friday repeatedly cited U.S. Supreme Court Justice Antonin Scalia’s dissent from this summer’s ruling on the federal Defense of Marriage Act.
In doing so, U.S. District Judge Robert Shelby wasn’t exactly turning Scalia’s words against him but rather fulsomely embracing the dire warnings Scalia had given about what the Supreme Court majority’s decision meant for the future legal challenges to state laws that attempt to preserve traditional marriage.
From beginning to end of Shelby’s opinion Friday, in four different citations scattered throughout, he favorably cited Scalia’s dissent, buttressing his legal analysis with Scalia’s warnings.
In its 5-4 decision in June, the Supreme Court held that the federal Defense of Marriage Act was unconstitutional because it violated individual liberty, but did not rule that all state bans on gay marriage were unconstitutional. In his dissent in the case, United States v. Windsor, Scalia wrote that the majority opinion’s logic would inevitably lead to the state bans being declared unconstitutional as well:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion … 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.
Shelby nodded in rhetorical agreement with Scalia’s reasoning after citing that quote in his decision.
“The court agrees with Justice Scalia’s interpretation of Windsor,” Shelby wrote, “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.”
