Antonin Scalia, of all people, pointed the way to legalizing gay marriage in all states


The irony HERE is nothing short of delicious:

Last summer, the Supreme Court handed down a landmark decision equalizing the treatment of all married couples under federal law. But it opted not to address the more fundamental question in a related case: whether gay and straight couples are entitled to equal protection on the state level, where marriage law is made.

That extraordinary dodge was seen by some experts as a disingenuous way of seeking a middle ground in the rulings on the Defense of Marriage Act and California’s ban on same-sex marriage. Dissenting Justice Antonin Scalia fumed that it amounted to “legalistic argle-bargle.” And it appears he had a point: a number of federal judges from Utah to Kentucky have concluded that the Supreme Court’s legal reasoning does not leave substantial room for state-based discrimination against gay marriage.

Recently, federal judges in Utah and Oklahoma overturned the states’ bans on gay marriage as unconstitutional, leading to chaos as gay marriage was briefly legal there before the states appealed the decisions and halted them. In Ohio, a federal judge ordered the state to recognize same-sex marriages on death certificates. And on Wednesday, a federal judge in Kentucky ordered the state to recognize out-of-state gay marriages.

“To Kennedy, federalism was key to the DOMA decision. But it’s the other parts of the decision that are influencing lower courts the most,” said Adam Winkler, a professor at UCLA School of Law, who supports marriage equality. “Courts today are finding in Windsor strong support for the idea that denials of marriage benefits are based in anti-gay attitudes, not valid public policy goals. The Court in Windsor purposefully avoided ruling on the constitutionality of a marriage ban, so it’s not a matter of following [or] not following the Court. Kennedy purposefully kept the window open for courts to strike down marriage bans.”

Scalia saw this coming. “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,” he wrote in his barnstorming DOMA dissent. “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.”

Judges in Utah and Kentucky have, with a heavy dose of irony, referenced that comment by Scalia in their rulings against anti-gay-marriage laws.

Some experts note that the DOMA case was about federal law and not state law, making it unremarkable for the court to avoid the latter question. But the other case heard by the justices one day earlier, Hollingsworth v. Perry, posed exactly that question. And a majority of justices, including Kennedy, opted not to rule on the merits and instead dismissed the case on standing.


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