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04/25/2011

Focus on Antonin Scalia's open door

by Jeremy Hooper

This interesting mention comes from Focus on the Family's Citizenlink site:

[Justice Antony] Kennedy wrote the majority opinion striking down a state sodomy law in Lawrence v. Texas (2003), saying among other things that there is “no legitimate state interest” in the moral status of homosexuality. At the time, Kennedy said that he wasn’t addressing “whether the government must give formal recognition to any relationship that homosexual persons choose to enter.”

In dissent, Justice Antonin Scalia warned that Kennedy had done exactly that.

“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,” Scalia wrote.

“Kennedy’s pride might prevent him from proving Scalia correct with an immediate vote for same-sex marriage in a case like the Prop 8 challenge, so the theory goes,” Hausknecht said.

“But Kennedy is fond of looking for ‘an emerging awareness’ toward social change to achieve his goals, and he’s not above helping the change along by an incremental case or two. That’s what the gay activists are hoping for.”

Walking Away from a Promise [FOtF]

We say interesting, because the Focus writer (Matt Kaufman) is highlighting the exact Scalia mention that we'd think their side would be eager to sidestep: The justice's outright admission that Scalia-Kennedyin a post-Lawrence world, gay couples' omission from the marriage game is tougher, if not impossible, under constitutional law. Others have already noted how Scalia is all-but boxed in by his own words and the words Judge walker used in the Prop 8 ruling. So really, the question Focus on the Family and other proponents should be pondering (/fearing) is not whether or not Kennedy will be pressured either way by Scalia's words. No, no -- It's whether or not Scalia will stand by what he knows/admits to be true, or whether he will instead attempt to wiggle his way out of what he himself wrote.

At this point, anti-LGBT groups essentially consider Scalia to be part of their own outreach wing, so they probably take his locked-in-iness for granted. But we have questions. And Antonin has some real choices to make come marriage decision time. These "protect marriage" folks alway want to talk about the liberal courts and their supposedly overreaching role. But if the most conservative justice tries to prevent/roll back marriage equality (which would pretty much require some sort of repudiation of Lawrence), he might just give America its truest, most pervasive example of judicial activism yet.

**

*SEE ALSO: An excellent investigation into all this: Justice Scalia is boxed in by Prop 8 ruling [The Fourth Branch]

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