Antonin Scalia is often cited by circuit judges when they’re striking down state bans on same-sex marriage—a huge irony in that Scalia is a staunch opponent of marriage equality.
It was in his dissenting opinion to 2003’s Lawrence v. Texas case, which struck down all anti-sodomy laws, that Scalia couldn’t resist issuing a dire warning that the floodgates were now open for all manner of pro-gay decisions. Acknowledging that the Fourteenth Amendment’s equal protection clause must apply to gays, Scalia argued in Lawrence that the only thing separating gay people from full equality was society’s moral disapproval. This is the argument that preserved anti-sodomy laws in Bowers v. Hardwick in 1986, and the very one that the majority rejected in 2003.
Wrote Scalia in Lawrence: “State laws against same-sex marriage … are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.” This is the passage that has repeatedly been cited by judges ruling against gay marriage bans—most recently by a U.S. District Court in Florida.
In this respect, Scalia has all the trappings of a biblical prophet, not only predicting doom but enumerating the exact sins for which the Hebrew people are about to be punished. One always wonders, if these guys had just kept quiet, maybe God might not have noticed. Too late now!
