LGBT

xchrom

(108,903 posts) Thu Feb 13, 2014, 08:29 AM Feb 2014

The Kentucky Gay Marriage Decision Is Another Hilarious Swipe at Scalia

http://www.slate.com/blogs/outward/2014/02/12/kentucky_gay_marriage_scalia_would_hate_this_ruling.html

Be careful what you predict, Justice Scalia.

Supreme Court Justice Antonin Scalia famously enjoys throwing temper tantrums when he winds up in dissent, predicting a cascade of terrible consequences that will flow from the majority’s ruling. Usually, his prophecies are ridiculously overblown. But when it comes to gay rights, Scalia has a perfect record for anticipating each ruling’s consequences. He swore that Romer would lead to Lawrence, that Lawrence would lead to Windsor—and he was so convinced that Windsor would lead to nationwide same-sex marriage that he penned a draft of what the opinion striking down all gay marriage bans might look like.

Now, for the second time in two months, a federal judge has taken Scalia at his word and struck down state-level anti-gay laws. This time, the unlikely state is Kentucky, and the judge is John G. Heyburn, a George H.W. Bush appointee recommended by Republican Sen. Mitch McConnell. Heyburn’s opinion mostly follows the emerging pattern of these kinds of rulings: He wavers on the scrutiny question, finds that the law was driven by anti-gay animus, and strikes it on Equal Protection grounds. The ruling itself is narrow; Heyburn was only asked to invalidate the portion of Kentucky’s law that bans recognition of out-of-state gay marriages. But the judge added that should the entire ban be challenged, “there is no doubt that Windsor and this court’s analysis” would likely hold it unconstitutional.

By now, an opinion like this is fairly predictable. It comes as a pleasant surprise, then, to see Heyburn channeling his inner Judge Robert Shelby and sticking his thumb directly in Scalia’s eye. In Scalia’s Windsor dissent, the justice decried overly broad, “deliberately transposable passages” expounding the federal Defense of Marriage Act’s unconstitutionality. “How easy it is,” Scalia snorted, “indeed how inevitable, to reach the same conclusion [as the court in Windsor] with regard to state laws denying same-sex couples marital status.” Then he illustrated for the world just how easy it would be to apply Windsor’s logic to state-level gay marriage bans, indignantly substituting a few key words:

DOMA This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence…