Thank Scalia For Utah Marriages

Jim Burroway

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.


Ben In Oakland

December 20th, 2013

Thank you, judge, for hoisting Scalia on his own legal petard. I sure there was no animus involved…

…though the legal principle known as “sublato in medium, ut omnes a anum” does come to mind.

Bose in St. Peter MN

December 20th, 2013

I got the same thing out of reading the decision, with the Lawrence cite about “moral disapprobation of homosexual conduct” being my favorite.

But, there’s just so much fun stuff here… a pre-holiday Friday afternoon ruling with no stay… the first post-prop-8 federal ruling on a state constitutional amendment… dampening any faint hopes of ultimate success for a newly-launched NM or Hoosier state amendment… another nail in the coffin of 2004 amendment wins… Brian Brown’s head exploding to the extent he had to divert his attention from family night to direct attention to a totally unexpected press release…

I’m not a big holiday-oriented guy, but this feels like a day worth celebrating big.


December 20th, 2013

Is it wrong of me to find this too delicious?

Ben in Oakland

December 20th, 2013

It is only wrong if you find it just too, too, too delicious. Otherwise, you,re fine.


December 20th, 2013

Absolutely BRILLIANT!


December 20th, 2013

Here’s to you, Tony!

Have fun at your next Federalist Society fundraiser…


December 20th, 2013

Oh I am sure that Scalia loved the judge using his reasoning in this case. Such schadenfreuden can never be under appreciated.


December 20th, 2013

Took the words right out of my mouth, Ben. Hoist away!

Gene in L.A.

December 21st, 2013

I wonder, considering what we know of Scalia, if we can look forward to him saying “But that’s not what I meant by what I said!”


December 21st, 2013

Just curious Ben, but what does that latin translate into? I know that Ut Omnes Unum can be translated into all maybe one


December 21st, 2013

Yes Utah, there IS a Santa Claus and he’s pro equality.

Sir Andrew

December 21st, 2013

I wasn’t sure what I would voice in my Solstice observance on Saturday, but the courts of New Mexico and Utah (!) have given me all the gratitude for life at this time that I need.

Will this stop Scalia from being so snarky in his dissenting opinions? Maybe, at the very least, he’ll stop to think how those words can be used by those he hates. But for right now, the irony is just delicious.

Ben in Oakland

December 21st, 2013

Byron, ANUM, not UNUM.

It translates in to “raising a middle finger to a total asshole.”


December 21st, 2013

ah that’s why google wasn’t able to translate it and switched anum to unum.

Ben In Oakland

December 21st, 2013

Byron, strike while the irony is hot. I used google translate to go from the English to the latin.


December 21st, 2013

@Ben: That is church Latin, right?

Paul Douglas

December 21st, 2013

I don’t care if Scalia does turn out to be the reason marriage equality becomes legally justified, I will always despise him.


December 21st, 2013


Ben in Oakland

December 21st, 2013

God knows. I don’t speak Latin. But the , neither does god.


December 21st, 2013

That is genius, real-life trolling. Love, love, love it.

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