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03/02/2010

Unlikely Justice: Will Antonin's own words tie his hands / tie our knots?

by Jeremy Hooper

ScaliaBarney Frank refers to Antonin Scalia as "that homophobe," but could the Supreme Court Justice actually be the key to granting marriage equality? Ted Olson and David Boies think so, using words from Scalia's Lawrence v. Texas dissent as reason why.

This from Change.org:

Scalia also wrote this very wordy, but very telling paragraph [in Lawrence]: "If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct, and if, as the Court coos, '[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,' what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution,?' This case 'does not involve' the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court."

As Olson and Boies
recently explained on Bill Moyers, Scalia's dissent highlights the connection between the ruling in Lawrence, the Court's previous decisions that made marriage a fundamental right, and the fight to overturn Prop 8. Olson believes those decisions, when viewed as a unified legal issue, can only lead to one possible opinion: discrimination based on sexual orientation is unconstitutional. And that's why he thinks Scalia's panties were in such a twist over the Lawrence opinion.
Could Justice Antonin Scalia Be the Key to Marriage Equality? [Gay Rights -- Change.org]

Oh, can you imagine? The man who used the phrase "so-called homosexual agenda" in his Lawrence dissent having no choice but to support logically-called equality? It wouldn't be a question whether he'd be in hot water with the religious right -- it'd be a question whether he'd have to row v. wade!

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Your thoughts

The other way that Scalia could play it is that his dissent of Lawrence put him on record as stating that he didn't agree with the decision. And most specifically because it could lead to (GASP) gay-marriage (horror of horrors). By dissenting, he may have given himself footing for any future action proscribing same-sex marriage. More specifically, that he believes that Lawrence is flawed (only) because sodomy laws prevented something much worse, that being same-sex marriage. Of course, that would be nonsensical jackassery, but when it comes to being a jackass, Scalia sits on a pretty bountiful curriculum vitae.

Posted by: Dick Mills | Mar 2, 2010 1:30:10 PM

I have to agree with Dick. The logical extension of Scalia's dissent is in favor of same-sex marriage, but Scalia can easily get around it by reinforcing his continued disagreement with the outcome of Lawrence. He has had no problem in the past rejecting Stare Decisis and standing on how he believes old cases should have been decided. Priding himself on the textualist philosophy, I'm confident that he'll point to the Constitution's lack of any explicit right to marriage and call it a day.

That having been said, if Olson and Boies are optimistic, I'm inclined to be persuaded.

Posted by: Family Fairness | Mar 2, 2010 3:11:29 PM

I'm not convinced yet.

Posted by: stojef | Mar 2, 2010 4:49:27 PM

Yeah, this would be interesting IF (very big if) Scalia didn't have an impressive history of finding one case of the Supreme Court upholding a violation of individual rights in the 1800s (see Romer v. Evans) citing it as precedent and then writing a long worded, mostly meaningless, opinion saying that anyone who actually agreed with the spirit in which the constitution was written is an 'activist judge'.

Posted by: Kearne Fey | Mar 3, 2010 9:03:04 AM

Thanks from MAIA on Change... she is new a doing good job there too.

Posted by: LOrion | Mar 3, 2010 12:28:57 PM

Scalia will not be for same-sex marriage for the simple reason that he does not believe that the Constitution's word "liberty" encompasses the liberty to marry someone of the same sex. He has repeatedly spoken against the Constitution's right to privacy (long line of cases from Griswald - and prolly before - to Lawrence v. Texas), and he is also one of the strongest originalists on the Court, so he will argue that originally no one could possibly imagine that the word "liberty" would be used to allow same-sex marriage.

However, his words are persuasive if one starts from the view that the Constitution is a "living and breathing document" and that the right to privacy exists.

Posted by: Chicagotist | Mar 3, 2010 3:42:59 PM

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