Scalia's Predictions Are Coming Home to Roost

Antonin Scalia - anti-gay bigot

For the record, I despise Supreme Court Justice Antonin Scalia.  In my view, the man is a bigot of the first order and frequently makes a mockery out of the rules of judicial conduct and the requirement that judges - and Supreme Court justices - should not make up their minds on cases before ever reading the first brief or review the first piece of evidence.  When the Supreme Court handed down its ruling in United States v. Windsor, Scalia - a homophobe of the highest order - wrote a dissent slamming the majority of the Court for setting the stage for the striking down of all state bans on gay marriage.  With the string of recent federal court rulings, thankfully, Scalia's prediction may soon become a reality.  Here are excerpts from a piece in the Washington Post:

While the five-member majority of the court said it was not deciding whether a constitutional right to marriage must be extended to same-sex couples, Scalia said the reasoning of the decision made that outcome practically preordained.

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here,” Scalia wrote. Instead, “the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote, and such suits are a “second . . . shoe to be dropped later.”

Scalia’s words have been highlighted in the two recent decisions about same-sex marriage that will return the issue to the Supreme Court.

U.S. District Judge Timothy Black cited the dissent in a ruling that said Ohio, which bans same-sex unions, must recognize on a death certificate a marriage that was performed in another state.

“Just as Justice Scalia predicted — the lower courts are applying the Supreme Court’s decision, as they must, and the question is presented whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples . . . simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004),” wrote Black (the ellipses and parenthesis are his).  “Under the Constitution of the United States, the answer is no.”

In Utah, where just before Christmas a federal judge struck down that state’s constitutional amendment forbidding same-sex unions, Scalia’s words played a prominent role both in the challengers’ arguments and the ruling.

In their filings, the lawyers bold-faced the Scalia dissent for emphasis:

(“[T]he view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking in today’s opinion. . . . [T]he real rationale of today’s opinion . . . is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages. . . . How easy is it, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”)

And U.S. District Judge Robert J. Shelby mentioned Scalia’s dissent throughout his lengthy opinion and concluded: “The court agrees with Justice Scalia’s interpretation of Windsor 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.”

[A]s Scalia pointed out, Justice Anthony M. Kennedy’s DOMA decision practically provided a blueprint for how such challenges might be successful.

The piece also notes the irony of the backing Judge Shelby received when he was nominated to the bench:

He was endorsed by both of Utah’s Republican senators, and Sen. Mike Lee, a constitutional conservative popular with the tea party movement, called Shelby “preeminently qualified” and predicted he would be “an outstanding judge.”

These assessments, of course, were correct - just not in the way the anti-gay Republicans wanted them to be.