Scalia Helps Advance Gay Marriage In Fourth State In Three Months

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February 14, 2014 9:43 a.m.

For the fourth time in three months, U.S. Supreme Court Justice Antonin Scalia helped forward marriage equality in a state that had banned it, with his work cited by the federal judge invalidating Virginia’s ban on same-sex nuptials.

Following her predecessors in Utah, Ohio and Kentucky, U.S. District Judge Arenda Wright Allen name-checked Scalia and his dissent from last year’s Supreme Court decision striking down the federal Defense of Marriage Act in her decision Thursday to overturn Virginia’s ban on gay marriage.

“In (the DOMA case), our Constitution was invoked to protect the individual rights of gay and lesbian citizens, and the propriety of such protection led to upholding state law against conflicting federal law,” Allen wrote Thursday. “The propriety of invoking such protection remains compelling when faced with the task of evaluating the constitutionality of state laws.”

She then quoted the rationale “described eloquently in a dissenting opinion authored by” Scalia:

As I have said, the real rationale of [the Windsor 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

Scalia dissented strongly from the majority’s DOMA decision, decrying it as “black-robed supremacy” for overriding a law that had been passed through Congress and signed by the president and ripping its legal rationale as “rootless.” But he also — accurately, as these examples, show — predicted that the inevitable fallout would be the unraveling of state prohibitions on same-sex marriage, which he said was the logical extension of the DOMA decision even if the Court didn’t apply it at the time.

“The Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat,” he wrote. “We owed both of them better. I dissent.”

Wright’s full opinion is below.

Virginia Same-Sex Marriage Opinion

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