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Monday, December 23, 2013

The Utah Gay Marriage Decision Used Justice Scalia's Own Language Against Him

Posted by on Mon, Dec 23, 2013 at 12:45 PM

As we're still reveling in the Utah gay marriage decision, Slog tipper Bill points out this post on Box Turtle Bulletin, which suggests that Judge Shelby may have tossed a middle finger at raging homophobic Supreme Court Justice Antonin Scalia in his decision.

On three separate occasions, Shelby quotes Scalia's dissents to gay-themed cases as examples of why gay marriage should be legal in Utah. Two of those examples are from Scalia's recent dissenting opinion on U.S. v. Windsor, in which he argued that the decision would make it impossible for states to argue against gay marriage. Shelby is, in effect, using Scalia's dissent as an illustration of why same-sex marriage in Utah should be legalized. That's some fine legal judo. Even better was this example, which uses Scalia's 2003 dissenting opinon on Lawrence v. Texas:

The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex:

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribingthat conduct, . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”?

Id. at 604-05 (Scalia, J., dissenting) (citations omitted).The Supreme Court’s decision in Lawrence 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.

This is deliciously bitchy stuff.


Comments (18) RSS

Oldest First Unregistered On Registered On Add a comment
A little late to the party. But yes, Scalia may be a troll, but he has the best legal mind of the conservative wing.
Posted by Hanoumatoi on December 23, 2013 at 12:51 PM · Report this
Pope Peabrain 2
@1 Sad, but true.
Posted by Pope Peabrain on December 23, 2013 at 1:01 PM · Report this
Sargon Bighorn 3
#1 I'm not sure what you mean by "The best legal mind" given that his "best" has been turned around easily and used against his line of thinking. Granted he is a smart man with a bad attitude toward Gay folk. Might you shed some light on why you say he is the "the best" of the Conservative wing? You could be right. I'm interested.
Posted by Sargon Bighorn on December 23, 2013 at 1:14 PM · Report this
Not the only Judge to do so.…

Alas the ruling only applies if your dead. But hey if you were legally gay married somewhere and end up dead in Ohio your still gay married. So I guess it is a win.
Posted by Machiavelli was framed on December 23, 2013 at 1:20 PM · Report this

Scalia has always said that he writes more dissents than other judges with the target of being cited in law school books and shaping the minds of future lawyers and judges. If this trend continues, it would be ironic if decades from now Scalia were best remembered for writing the dissent relied upon by many pro-gay marriage decisions.
Posted by Fr0zt on December 23, 2013 at 1:27 PM · Report this
The Ohio decision that was released today (regarding death certificates for individuals in same-sex marriages) did the same thing. Another huge win!
Posted by db4530 on December 23, 2013 at 1:27 PM · Report this
fletc3her 7
@1 I'm not sure what you mean by "legal mind". If it means twisting logic into whatever shape necessary to justify one's pre-existing then, yes, Scalia is great at it. It if means applying the law clearly and consistently without bias or malice then no.
Posted by fletc3her on December 23, 2013 at 1:48 PM · Report this
I don't understand. How can a written opinion in support of one thing be used to support the opposite? Can someone please explain in English -- not legalese -- what is going on? Scalia *dissented* in Lawrence but it sounds like he's agreeing with what the agreers said. I am so confused! p.s. "disapprobation" is something I'd call legalese, even though I'm sure smarter people than myself would call it English.
Posted by idaho on December 23, 2013 at 2:04 PM · Report this
@7: I mean that he IS consistent. There is bias there, but he is consistent, has a reading of the laws, and applies it. Alito and Roberts are pale imitations. He has the ability to see precedents being set, and make internally consistent legal arguments.

@3: Not really, he says that he is opposed to a ruling because this is the inevitable consequence, and sure enough, it turns out to be the inevitable consequence. So he disagreed back at the start. This is part of why I call them internally consistent legal arguments. He says that if you follow the conclusions to further conclusions, this is where you will end up, and he was right.

I disagree with him almost every time, but I can respect the mind that is obviously there.

Also, if you think he is NOT the finest legal mind on the conservative wing, tell me who is sharper, Roberts, Alito, or Thomas?
Posted by Hanoumatoi on December 23, 2013 at 2:06 PM · Report this
venomlash 10
A little bitchy, but mmm! Good stuff.
Posted by venomlash on December 23, 2013 at 2:06 PM · Report this

Basically Scalia's dissent in the earlier decisions said that those decisions were bad because their logic naturally led to gay marriage, i.e, "This decision is terrible because any lower court following it will have to strike down bans on gay marriage! Is that what you want?!"

So the lower courts are now saying that Scalia's "dire predictions" are right -- that the decisions that Scalia disagreed with do in fact require the lower courts to strike down bans on gay marriage.
Posted by Fr0zt on December 23, 2013 at 2:09 PM · Report this
@8: Scalia wrote a dissent in Lawrence v Texas (…) where he stated that part of how you could tell that the decision the Supreme Court made there was that if moral disapprobation of homosexual activity was an inappropriate reason to outlaw gay sex, there would be no reason to deny gays the right to marry.

This judge said that since the Supreme Court in that case DID say that moral disapprobation is insufficient justification for discrimination against gays, gays must be afforded the right to marry.

Scalia will see this not as a slam, but as confirmation of his position, that Lawrence v Texas was improperly decided.
Posted by Hanoumatoi on December 23, 2013 at 2:10 PM · Report this
Reverse Polarity 13
This is a little detail that I've been enjoying the most about the latest state to join the marriage equality club. Judge Shelby clearly despises Scalia, and seems to be taking great glee in using his own words against him.
Posted by Reverse Polarity on December 23, 2013 at 2:27 PM · Report this
kk in seattle 15
I don't buy this silly post. Scalia's language is not "being used against him." He was making a "slippery slope" prediction in his dissent, and he was completely vindicated: the decision in Lawrence is in fact what permitted the Supreme Court to strike down DOMA and Judge Shelby to throw out Utah's ban on gay marriage. Basically, Scalia said to the majority in Lawrence: If you overturn this conviction, there's no reason why we won't have gay marriage soon. And he was right! The best thing is, even after reviewing the dissent and its prediction, Justice Kennedy and the Supremes threw out the case against Lawrence anyway. The arc of the moral universe and all that.
Posted by kk in seattle on December 23, 2013 at 4:35 PM · Report this
@8: To back up what has been said here, read the judges' own words!…

That's his rejection of the request for the stay, on pretty forceful terms, as he rejects each of the 4 pillars required for a stay. It is hard to imagine the 10th circuit permitting a stay, given that the defendants make the same arguments regarding the merits, and the harms to the plaintiffs of a stay far outweigh the harms to the state of no stay.
Posted by Hanoumatoi on December 23, 2013 at 5:56 PM · Report this
Dr. Z 17
I've read the submissions by the plaintiffs and defendants along with the judge's response and the transcript of this morning's hearing, and it's pretty clear a lot of people have misread Shelby's quoting of Scalia as a slam. It's clear from the trial record that Shelby harbors no animosity for Scalia and intended no snark. Shelby isn't a huge fan of the Windsor decision - it didn't give him clear guidance in this case. Since Shelby is in the uncomfortable position of having to be the first Federal district judge to rule on a state DOMA law in the post-Windsor era, he's quite understandably reading whatever tea leaves he can for guideance. That's why he cited Scalia's dissent - not because it's binding precedent and not because he agrees with Scalia's reasoning in Windsor. Rather, it was because Scalia is (unintentially) providing useful arguments as to why Windsor invalidates state DOMA laws. Admittedly Scalia wasn't in the majority, but he is at least a SCOTUS justice and as such a useful source for broader interpretation and applicability of Windsor.

Which is about ten thousand times funnier that the meme that Shelby's some kind of Democratic sleeper operative posing as a Mormon to get under Scalia's skin. I think Shelby's a lot more fair minded than a mere partisan hack. That sells him - and us - short in a great victory.

BTW, the attorney for our side is diamond-drill sharp. IMO she's got the makings of a future Federal judge.
Posted by Dr. Z on December 23, 2013 at 9:27 PM · Report this
Sargon Bighorn 18
Thank you Ms Hanoumatoi. So Saclia said that because the law allows Gay folks to have sex (just like Hetero-folk) with out legal consequence, the next step into the darkness would be equal marriage rights (just like the Hetero-folk). The "inevitable consequence" as you say. Indeed it's good you disagree with him. However, if you think his reasoning (as you understand it, and I know see your point) is the best of the conservative wing, it's no wonder the conservative wing is not winning the war in the fight for Gay Civil equality. Thank you for your insights, much appreciated.
Posted by Sargon Bighorn on December 24, 2013 at 12:14 AM · Report this
I think we need to be careful about celebrating the vindication of Justice Scalia's "slippery slope" warnings. We need to be very careful about validating any "slippery slope" arguments.
Posted by Charlie Mas on December 24, 2013 at 7:36 AM · Report this

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