Thank Scalia For Utah Marriages
December 20th, 2013
Court Judge Robert J. Shelby, in striking down Utah’s constitutional amendment banning same-sex marriage, gave this shout-out to everything-gay opponent and U.S. Supreme Court Justice Antonin Scalia’s dissent in Windsor v. U.S., in which the Court struck down Section 3 of the Defense of Marriage Act. Shelby’s first shout-out is at page 13:
The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:
In my opinion, however, 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.
133 S. Ct. at 2709 (citations and internal quotation marks omitted). The court agrees with JusticeScalia’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.
Also, at page 15:
…And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it: “I do not mean to suggest disagreement … that lower federal courts and state courts can distinguish today’s case when the issue beforethem is state denial of marital status to same-sex couples.”
Judge Shelby also goes to Scalia’s classic dissent in 2003′s Lawrence v. Texas, which struck down sodomy laws nationwide. At page 31:
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.