Ten years ago to the day, dissenting in the case of Lawrence v. Texas, Justice Antonin Scalia played the role of Cassandra, warning darkly—and at the time, it seemed, hyperbolically—that the ruling invalidating laws against homosexual conduct would lead inexorably to the creation of a constitutionally protected right to same-sex marriage.
On Wednesday, dissenting in the case of U.S. v. Windsor, Chief Justice John Roberts was more Canute than Cassandra. Like the Scandinavian king said to have sought in vain to hold back the tides, the chief justice took pains to emphasize, not the potential reach of the majority’s decision to invalidate the Defense of Marriage Act, but its actual limits.
“While I disagree with the result …I think it more important to point out that its analysis leads no further,” Roberts wrote of the majority opinion. “The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States…may continue to utilize the traditional definition of marriage.”
Scalia’s response boiled down to: Good luck with that. Nice tides you’ve got there, chief.
“In my opinion… the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion,” Scalia wrote. “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
This tension—the Cassandra-Canute divide—will be at the center of the ensuing legal debate over same-sex marriage. Is Scalia correct about the inevitability of the court finding a constitutional right to same-sex marriage?
Or can Roberts hold back that tide, emphasizing the difference between the federal government giving deference to a state’s definition of marriage and the federal government imposing a particular definition on all states?
I am rooting for Cassandra but do not, in this instance, discount Canute. Is Justice Anthony M. Kennedy, who wrote the majority opinion in both the Lawrence and DOMA cases, truly prepared to be the fifth vote for creating a constitutional right to same-sex marriage? Are there four others? The logic of the two cases would lead to Scalia’s result, but rigorous logic is not always the sole factor in the justices’ decision-making.
At the time of the Lawrence decision, I must confess, Scalia’s admonitions about the inevitability of same-sex marriage seemed overblown, more mischievous rhetoric than likely scenario. But the justice was right, and I was wrong. The jurisprudential implications of the ruling led to numerous state court decisions declaring a right to same-sex marriage and to Wednesday’s invalidation of DOMA. Kennedy cited Lawrence in arguing that DOMA’s refusal to recognize same-sex marriages “demeans the couple, whose moral and sexual choices the Constitution protects and whose relationship the State has sought to dignify.”
At the same time, Kennedy took pains to assert that “this opinion and its holding are confined to those lawful marriages” that a state has already recognized.
Scalia wasn’t buying it. “It takes real cheek,” he wrote, “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—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it.”
Let’s hope he’s right, once again. The shoe can’t drop soon enough.