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Justice Scalia Stung With His Own Words

By The Reverend Published: June 8, 2014

I haven't been writing about marriage equality much because.....to be frank....my side has been winning the argument from courthouse to courthouse across the country. As I have mentioned before, when the Supremes struck down DOMA, the Defense of Marriage Act.....opponents of marriage equality had lost the fight.

Judges in Idaho and Wisconsin, however, have recently gone the extra-legal mile in their rulings on marriage equality......using arch-conservative Antonin Scalia's own words in a 2003 case as, at least, partial justification for striking down state gay marriage bans. For your average liberal blogger, it doesn't get more satisfying than that.

Last month in blood-red Idaho....

In declaring Idaho's same-sex marriage ban unconstitutional on Tuesday, U.S. Magistrate Judge Candy Dale name-checked Scalia's dissent in the 2003 decision Lawrence v. Texas, which struck down an anti-sodomy law.

I'm sure you're heard the phrase "protecting traditional marriage" as a defense for denying gay couples the equal right to marry.

But look at what Scalia wrote in 2003 in dissent of Lawrence, as the most cocky Justice waxed all smart-assery.....

Scalia at the time was trying to warn that the court's decision against an anti-sodomy law would call into question laws based on moral choices, like same-sex marriage (and, he wrote, bigamy, adult incest and prostitution). He wrote that "'preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples."

Oh my. Scalia explained that the words "preserving traditional marriage", as used by opponents of gay marriage equality, were but a less offensive way of saying that opponents of gay marriage simply "disapprove of same sex couples."

Last month in Idaho, Judge Dale took Scalia's own 2003 words and used them to help strike down Idaho's ban on gay marriage....

"Although the Court finds Idaho’s Marriage Laws were motivated, in part, by important governmental interests, their history demonstrates that moral disapproval of homosexuality was an underlying, animating factor," Judge Dale wrote.

Last week, the same thing happened in Wisconsin....with this additional bonus....

"As an initial matter, defendants and amici have overstated their argument. Throughout history, the most 'traditional' form of marriage has not been between one man and one woman, but between one man and multiple women, which presumably is not a tradition that defendants and amici would like to continue," Crabb wrote in her opinion.

Oh my, again. Far from one woman-one man being the "traditional" historical form of marriage, Judge Crabb reminded that the truest historical tradition of marriage is...polygamy. That one had to hurt.

But then Judge Crabb threw a metaphorical sucker punch to Justice Scalia's fragile glass jaw.....

"Like moral disapproval, tradition alone proves nothing more than a state's desire to prohibit particular conduct," she wrote, citing Justice Antonin Scalia's dissent in a 2003 sodomy case, which stated that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples."

In other words, just because a group of people.....elected government, churches, political opponents....morally disapprove of something, say, like the voting rights of women, and denying women the right to vote becomes an American "tradition"......appealing to that "tradition" in defense of continuing to deny women the right to vote...."proves nothing." Same, same with "protecting traditional marriage."

Justice Scalia is the most defiantly political Justice ever. He wears his cantankerous defiance on his sleeve. So, it is extremely satisfying to see two successive federal judges, basically, bitchslap Scalia with his own words.

No, traditional marriage is not one man-one woman....traditional historical marriage is instead, at least if one follows the Judeo-Christian, you know, "tradition".....polygamy. Further, simply saying hetero-marriages are "traditional" when what opponents really mean is "we morally disapprove"...."means nothing" in a legal argument in America. For that last line of impeccable logic we have Justice Antonin Scalia to thank.

And that makes The Reverend smile.

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