Saturday, December 21, 2013

Maybe Justice Scalia Just Can't Stop Himself

By Mike Dorf

When the Supreme Court decided Lawrence v. Texas in 2003, the majority opinion included language disavowing implications for same-sex marriage.  In invalidating the Texas law forbidding "homosexual sodomy," Justice Kennedy wrote for the Court, the majority did not say that the government was obligated to grant official recognition to same-sex relationships (through marriage or otherwise).  In dissent, Justice Scalia objected that, notwithstanding the Court's disclaimer, the logic of the case implied that there is a right to same-sex marriage.

Subsequent events largely proved Justice Scalia right.  Before the end of the year, the Massachusetts Supreme Judicial Court ruled in the Goodridge case that the state's constitution guaranteed a right to same-sex marriage. Although the opinion did not cite Justice Scalia's Lawrence dissent, in repeatedly citing the Lawrence majority, the Massachusetts SJC made clear that it agreed with his logic.

Did Justice Scalia learn his lesson? Hardly. Earlier this year, when the Court invalidated Section 3 of the Defense of Marriage Act in United States v. Windsor, CJ Roberts wrote a dissent in which he argued that the majority's holding not only did not entail the invalidation of state laws banning same-sex marriage, but that it strongly pointed in the opposite direction, insofar as it relied on principles of federalism.  But whereas Roberts was engaged in damage control, Scalia did not hold back.  He let loose with the following:
the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. 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.
Yesterday Justice Scalia's chickens came home to roost, at least in Utah.  In a thoughtful 53-page opinion in Kitchen v. Herbert, federal District Judge Robert Shelby invalidated Utah's state constitutional amendment banning same-sex marriage.  In support of his view that the 14th Amendment is best read to protect a right to SSM, Judge Shelby twice invoked Justice Scalia.  First, he said that he "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." Later in the opinion, Judge Shelby approvingly quoted the portion of Justice Scalia's Lawrence dissent in which he said that Lawrence entailed a right to SSM because, as Judge Shelby noted, it "removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals."

Justice Scalia must have seen this coming.  So why didn't he join CJ Roberts in the latter's dissent that attempted to limit the damage (from their perspective) in Windsor and why didn't he write something to similar effect in Lawrence?  Let me offer three possibilities.

First, it's possible that Justice Scalia acted out of principle.  Sure, it might be expedient to characterize the majority opinions in Lawrence and Windsor as leaving laws banning SSM untouched, but, in this view, Justice Scalia is a man of deep principle.  It would be dishonest for him to say anything other than what he thinks--which is that the Court's opinions in these cases imply a right to SSM.  If that means that there will be a right to SSM sooner (a result Justice Scalia thinks wrong as a matter of law), then so be it.


Second, it's possible that Justice Scalia would have joined the Roberts dissent or written one like it in Lawrence if he thought it would do any good, but he is enough of a legal realist to understand that whether and when we get a constitutional right to SSM will not in any way depend on how he words his dissents. Accordingly, he may as well be honest (per "First", above).

Third, maybe he just can't stop himself.  Perhaps Justice Scalia thinks (contra "Second"), that language in a dissent has at least a marginal impact on subsequent legal developments. But these gay-themed cases just get him so mad that he can't think or act strategically, and so he lets loose.

These possibilities are not mutually exclusive.  I leave for readers to assign relative weights to the foregoing and/or other factors.

17 comments:

Shag from Brookline said...

Third.

The Dismal Political Economist said...

I would make an important distinction here between the way I think many people interpret the Utah decision and what the Utah decision actually said. (and indirectly the New Mexico decision which did not involve a Federal right but relied on the same logic). Specifically that distinction is this. The Utah decision did not affirm Justice Scalia’s fears that because of Lawrence SSM would become a Constitutional right, it did not determine that SSM is indeed a Constitutional right per se and was derived as much from Perry as it was from Windsor

What the Utah decision seems to indirectly say is that the state of Utah may prohibit SSM, but in order to do so it must have sufficient justification to overcome the inherent bias in such a position against same sex couples. In Utah the defense of the prohibition relied on the argument from the state of Utah that marriage was for procreation purposes and therefore the state had a legally justifiable position in prohibiting SSM since that kind of marriage could not result in procreation.

The judge found no basis for that argument, namely that Utah did not prohibit opposite sex couples who were incapable for having children from marrying. By Utah’s own standards for marriage its argument that it reserved the right to legally sanctioned marriage to couples for the purposes of procreation was invalid on its face. (The New Mexico state Supreme Court reached the same conclusion for that state under the auspices of the New Mexico state constitution.

The decision several times affirms a right of the state to regulate marriage or related behavior if it has societal reason to do so. So the conclusion from the Utah decision it would seem that yes, a state may prohibit SSM if it can show a valid reason to do so. As the trial court found in Perry and the state Supreme Court found in Utah, the states of Utah and California were unable to do so. Of course this is because it is impossible to find a reason to ban SSM other than animus towards same sex couples. This does result in a de facto right to SSM, but not a de jure right under the U. S. Constitution, an important distinction in my mind.

So the answer to Judge Scalia is that his basic conclusion was wrong. . Even if Perry and Lawrence and Windsor did not exist, one can conclude that the judge would have reached the same decision. As the decision noted, things have changed, society has a new understanding of what it means to be a gay or lesbian couple, and so laws which may have been justifiable in the past are no longer so.

Rick said...

He just can’t stop himself. He was right about Lawrence, and he likes to be right about Windsor too. His dissents stand out like some judicial character that’s similar to some eccentric judges on American Idol, X-Factor, the Voice, etc.

Joe said...

Scalia wanted the state to have the power to discriminate against same sex couples merely based on animus.

It is not necessarily that there would be "a right" as in fundamental right to SSM. It is just that if you remove the power of the state simply to rest on animus, honestly, the state really has nothing much to stand on. If one is honest.

It would take time, just like it took time from Brown to Loving, which matters, since a decade or more allows the law and society to develop and get used to the idea. But, he was right to be upset as a matter of what was bound to happen eventually. It was a matter of time.

The same applies to Windor really -- once equal protection principles are applies to SSM, even if the case itself is limited to federal action, it is just a matter of time. Roberts wrote the caution opinion. Scalia decided to write the Jeremiah one.

There is a grounds to differentiate, like O'Connor tried in Lawrence (though later she was cited in the media supporting SSM), but realistically, not likely to happen. Rightly so. Brown to Loving.

Scalia enjoys the fire throwing anyhow. But, this looks like a mixture of all three.

Shag from Brookline said...

Over at Larry Solum's Legal Theory Blog the abstract and a link to Allen Rostron's short (5 pages!) article "Justice Scalia's 'Truthiness' and the Virtues of Judicial Candor" may throw a little more light on Scalia.

Funny Games said...
This comment has been removed by the author.
Funny Games said...

As the trial court found in Perry and the state Supreme Court found in Utah, the states of Utah and California were unable to do so. Of course this is because it is impossible to find a reason to ban SSM other than animus towards same sex couples.LOL Elo Boost | FUT 14 Coins
This does result in a de facto right to SSM, but not a de jure right under the U. S. Constitution, an important distinction in my mind.

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