As has become a running theme in court decisions overturning state bans on same-sex marriage, conservative Supreme Court Justice Antonin Scalia got some love when U.S. district Judge Barbara Crabb struck down Wisconsin’s ban Friday.
Scalia’s name is invoked 12 times in Crabb’s 88-page decision, including numerous references to his now infamous dissent in the Supreme Court’s ruling that overturned the federal Defense of Marriage Act last year. His dissent from the Lawrence v. Texas case, which overturned state bans on sodomy, is also cited on multiple occasions.
“However, as noted by Justice Scalia in his dissent, it is difficult to cabin the Court’s reasoning to DOMA only,” Crabb wrote as she concluded that the DOMA decision — if logically extended — requires the judiciary to strike down state bans on same-sex marriage as well.
It is the same point that Scalia made in his dissent, a point that judges in other states — Kentucky, Ohio, Virginia and Utah — have now referenced in their own decisions overturning or undercutting gay marriage bans.
Probably at some point in the future, Scalia will be remembered as a hero of the marriage equality movement. I’m not sure it’s the legacy he hopes for, but I don’t really care how we get to equality as long as we get there. Scalia is widely known for his hateful gay bashing, but actions count more than words, so I’m happy that his words have resulted in meaningful actions.
example eleventy-billion of why conservatives HATE it when you quote back to them the things that they say
Is there the legal possibility that a legislative or judicial action in the future on the SCOTUS DOMA decision could undercut all these other lower-court decisions at the same time? It’s great to have a little just desserts for Scalia and his extreme conservative trolling on the court. But having a single action that could undermine a whole swath of judicial precedence at the same time would suck.
Justices write dissents for many different reasons – often to try to position an argument to move the law in a future case. Of course it is evident to everyone that this is the logical extension of the DOMA decision. When the marriage question reaches the Court, Scalia will use all of these cites to say, “See, I told you so” and to argue that not only should they not approve marriage equality, the Court should in fact go back and reverse the DOMA decision and Lawrence v. Texas. I don’t see that as likely given the current make-up of the Court, but I believe that is why Scalia wrote what he did in his DOMA dissent.
I believe that if faced with the choice between finding a constitutional right to same sex marriage or fabricating a new legal concept from whole cloth, today’s Supreme Court would choose the latter. If all the federal appellate courts find a right, the Supremes might decide not to hear an appeal. IMO that’s about the best we can hope for from the current ultra-reactionary majority.
Another Supreme Court decision could undercut the unanimous (so far) district court decisions, or I suppose there’s a miniscule possibility that a constitutional amendment could somehow get passed - those would be the ways all the current decisions could be overturned at once.