U.S. Supreme Court

Scalia predicts the future, once again, in gay-marriage dissent

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File photo of U.S. Supreme Court
Justice Antonin Scalia courtesy
of ABA Media Services.

Ten years ago Wednesday, Justice Antonin Scalia warned in Lawrence v. Texas that the Supreme Court majority had created “a massive disruption of the current social order” by striking down a Texas law barring sodomy.

“State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity … every single one of these laws is called into question by today’s decision,” he wrote. Based on the court majority’s reasoning, “what justification could there possibly be for denying the benefits of marriage to homosexual couples?”

The Washington Post and U.S. News note Scalia’s prediction, as well as his new slippery-slope warnings in his dissent Wednesday in United States v. Windsor. The majority opinion cited equal protection and due process considerations when it struck down the Defense of Marriage Act that bans federal benefits to same-sex married couples.

“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 Windsor dissent (PDF). He points to wording in the majority opinion finding that supporters of DOMA acted to “disparage and to injure” same-sex couples, to “demean,” to “impose inequality” and to impose “stigma.”

“As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, 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.”

In Scalia’s view, gay marriage should be decided by the states. “We might have let the people decide,” he said.

Mother Jones highlighted “the best (or worst) lines from Scalia’s angry dissent” in an article that began this way: “Justice Antonin Scalia is not a big fan of gay sex, gay marriage, or gay anything.”

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