So give Justice Antonin Scalia credit — or condolences.
When the court last June struck down the federal Defense of Marriage Act and said the federal government must recognize same-sex marriages performed in those states where it was legal, Scalia sounded a loud warning.
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.
Attorneys Peggy A. Tomsic and James E. Magleby, representing a gay male couple and two lesbian couples, relied in part on Scalia’s interpretation of the majority’s DOMA decision,
U.S. v. Windsor.
Scalia, they said, recognized the opinion “for what it is: a holding that would bind lower courts, such as this court, if presented a constitutional challenge to state laws banning same-sex marriage.”
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.”
Of course, Scalia did not say in his Windsor dissent that lower courts must adopt such an interpretation.
“Lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples,” he wrote, adding: “Lord, an opinion with such scatter-shot rationales as this one . . . can be distinguished in many ways.”
Still, as Scalia pointed out, Justice Anthony M. Kennedy’s DOMA decision practically provided a blueprint for how such challenges might be successful.
It is not surprising that judges might want to quote a conservative justice when striking down what voters have put in place. Ohio and Utah voters amended their state constitutions to ban same-sex marriages in 2004, along with other states. Black and Shelby were nominated by President Obama.
Shelby’s decision, and his reliance on Scalia, has gotten the most attention from legal commentators. “In Striking Down Utah’s Gay Marriage Ban, Judge Gives Scalia Big Bear Hug,” read the headline on the liberal Talking Points Memo.
And University of Illinois law professor Jason Mazzone set off a hot debate on the legal website Balkinization when he wrote that Shelby’s opinion “would have appeared considerably more judicial had he resisted the urge to give Justice Scalia the finger.”
Shelby, 43, does not have the reputation as a firebrand. He had been on the bench only six months when he was assigned the same-sex marriage case Kitchen v. Herbert. He was previously a Salt Lake City lawyer and was honored for his service in Operation Desert Storm while in the Utah National Guard.
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.”
The state of Utah has said it will ask the Supreme Court to stay Shelby’s ruling and stop same-sex marriages while an appeals court considers the merits of the decision. Shelby and a panel of the U.S. Court of Appeals for the 10th Circuit in Denver noted the state failed initially to ask for a stay and has not proven the kind of harm that would warrant one.
In the meantime, marriages in Utah have broken records, according to a review in the Salt Lake Tribune. By last Thursday, the newspaper reported, more than 900 same-sex couples had been married across the state, despite the holiday and some counties refusing to issue licenses until Gov. Gary R. Herbert (R) directed them to follow Shelby’s order.
According to estimates from the plaintiffs’ filing in the court, that is about one-fourth of the gay couples living in the state.