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Is Justice Scalia's Past Sabotaging 'Traditional' Marriage's Future?

By Brett Snider, Esq. on February 27, 2014 | Last updated on March 21, 2019

Anyone who knows anything about Justice Scalia's politics and jurisprudence can probably guess that he is opposed to gay marriage.

Heck, he's generally opposed to gays -- in as much as he believes in a state's ability to jail them for having sex. Justice Scalia has even equated homosexuals (though he's hardly the only one) to those who commit incest and bestiality.

So why then is he being credited for helping strike down gay marriage in Texas?

Conservative Bans Fall Thanks to Scalia

Although you wouldn't expect federal judges to cite Justice Scalia in support of gay marriage, that's exactly what's happened in the past few months.

Scalia's influence really blossomed with U.S. District Court Judge Robert J. Shelby's ruling in Utah's gay marriage challenge, which directly quoted Scalia's sarcastic dissent in Windsor to support striking Utah's gay marriage ban. The High Court's notable conservative had called out Justice Kennedy's majority in Windsor for making same-sex marriage in the states "inevitable" -- which Judge Shelby seized on in his ruling.

At the time, yours truly called it a bit of "legal judo" on the part of Judge Shelby, but he wasn't the only one to flip the script on Scalia.

What followed were decisions in three more conservative states (in order: Oklahoma, Kentucky, and Texas) which mirrored Shelby's approach in switching Scalia's anti-gay marriage views based on his own words.

Past Scalia Returns to Haunt 'Traditional' Marriage

And it wasn't just Scalia's recent dissent in Windsor that may be giving "traditional" marriage advocates fits.

In striking down Texas' gay marriage ban, Judge Orlando Garcia even unearthed some gems from Scalia's dissent in Lawrence -- which seems only fitting for the Lone Star state. How prescient that Scalia in 2003 had already found the logical flaws in a state's justifications for gay marriage bans.

Most notably, in Lawrence Scalia called the difference between "preserving the traditional institution of marriage" and "moral disapproval of same-sex couples" an illusion. And moral disapproval, per Romer, is a non-starter.

If arguments for childrearing or procreation fail, "tradition" may be the last bastion for upholding these bans -- and the ghost of Scalia past has already left the gate unlocked.

The Ghost of Scalia Future

Were this "A Christmas Carol," Scalia's past and contemporary dissents would have shown him the error of his ways, but not before meeting the Ghost of Scalia Future. While writers like Ryan J. Reilly of The Huffington Post have acknowledged the irony of using the arch-conservative's words to "screw" the Texas government's case, maybe it isn't all that simple.

Maybe Scalia is playing the long game.

Could Scalia's loose use of rhetoric in Windsor actually have been intended to return the issue of gay marriage to the High Court? With appeals fast-tracked in the Tenth Circuit and another on its way in the Fifth, it sure seems likely that SCOTUS will be hearing a state gay marriage case very soon. And punting on standing won't be an option.

But, dear Spirit, whose name is on that future grave? Is it the hopes of gay marriage advocates or is it the last gasps of "traditional" marriage?

Maybe by next session we'll have our answer.

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