Loading ...On gay marriage, Justice Antonin Scalia was prophetic
flockwoodIn June 2003, when the Supreme Court legalized homosexual conduct in all 50 states, the court insisted its ruling had nothing to do with gay marriage. ‘Baloney,’ Justice Scalia replied.
In Lawrence v. Texas, Scalia wrote in dissent that the court’s decision “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. …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. …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.”
Scalia foresaw the “judicial imposition of homosexual marriage” in the wake of Lawrence v. Texas.
By overturning Bowers v. Hardwick, the 1986 decision upholding the states’ rights to criminalize homosexual conduct, the court was making gay marriage all but inevitable, he suggested.
He was right. Five months later, in November 2003, the highest court in Massachusetts ruled that laws barring gay marriage were unconstitutional. Earlier this year, California followed suit.
Dozens of states have passed constitutional amendments barring the recognition of same-sex marriage. But these laws will soon be tested.
I’m not arguing for or against gay marriage in this post — that’s a thornet’s nest for somebody else to poke with a stick. I’m just pointing out that Scalia was right about the consequences of Lawrence v. Texas.
Barring a constitutional amendment, it may be inevitable that gay marriage will, eventually, become legal in all 50 states. Here’s why.
Article IV of the U.S. Constitution states:
Section 1. Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
Section 2. The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.
The “Full Faith and Credit” law generally means that a legal act in one state must be recognized by the other 49 states. If Mr. X and Ms. Y get divorced in Idaho, that divorce will be recognized not only in Boise but in Boston and Bentonville, Ark. Or here’s another example: State A has a minimum marriage age of 17 with parental consent. State B has a minimum marriage age of 16 with parental consent. Two 16 year old heterosexuals who get married with their parents’ consent in state B will have a valid marriage when they move to state A, even though they could not have legally married in state A.
Sooner or later, (and my money is on sooner) a married gay couple from Massachusetts or California will move to Little Rock or Salt Lake and they’ll insist that Arkansas or Utah provide them all the rights, privileges and responsibilities that are available to heterosexual couples. They’ll argue that the Full Faith and Credit clause requires all 50 states to recognize their union. Sooner or later, courts in states that bar gay marriage will also be asked to hear divorce cases between same-sex couples. Can a state that doesn’t give gays marriage rights give them divorce rights?
This dispute is headed for the Supreme Court. And when it does, Justice Scalia will tell everybody “I told you so.”
June 17th, 2008 at 6:32 pm
I haven’t read the Massachusetts and California decisions, but did they cite Lawrence or is this just Frank’s speculation? I don’t see how the US Supreme Court decision in Lawrence caused the state Supreme Court decisions on marriage. Seems more like they are both inevitable results of the same trend– changing attitudes in our country.
You are certainly right about how other states are going to have a migraine over the US Constitution’s Full Faith and Credit clause! That levee ain’t gonna hold.
June 18th, 2008 at 9:40 am
Scalia is very good at excoriating those with whom he disagrees for being “political” and for writing opinions designed to reach a predetermined political outcome. In his dissent in Lawrence, he himself did (as he often does) exactly what he criticizes his opponents for doing: rendered an opinion reasoned not by constitutional analysis but motivated by political concerns. Taking his own pithy methods of characterizing his opponents, he essentially predicted: “Because Lawrence prevents us from treating gay people as legally lesser life forms like “untouchables” or “ragpickers” in India, it will in the future be hard for us to deny them full equality in matters like marriage.” Scalia, in Lawrence, wanted to engage in eisogesis and tautologically read into the U.S. Constitution historical prejudice against gay people, rather than engage in exogesis to draw out from the Constitutional language and its precedents on the privacy of heterosexual sexual decisions–whether to do so with a purpose of preventing conception because of any number of motives (economic, pleasure, health risk, makeup sex with no desire to conceive a child, etc.), procreation (also for various reasons including the misguided attempt to repair a broken relationship with a spouse as well as the genuine desire to raise a care for a child for its own sake), in or out of marriage–that there is no rational distinction between such decisions made by consenting heterosexual adults and consenting homosexual adults.
Jose is legally correct that Lawrence, finding that the U.S. Constitution protects the privacy of adult consensual intimacy, has no direct bearing on state supreme courts interpreting the consititutionally different equal protection provisions of their own state constitutions. But make no mistake. Scalia’s “prophecy” was purely based upon writing his own political and religious views into the U.S. Constition: Now that I can’t make gay people criminal for doing what straight people do with impunity, I am hard pressed to deny them the equal protection of the laws including the rights and obligations which the state affords to married couples.
The “inevitability” is based upon the elimination of prejudice from the application of the law, not from some mistake the U.S. Supreme Court made by taking one more stept toward eliminating a legal caste system in America.
June 18th, 2008 at 12:20 pm
Jose, I have read the California decision in some detail. Its essence is that the California law on domestic partnerships gives gays and lesbians the ability to form a partnership with virtually all the attributes of marriage without the name. The court says that it’s unconstitutional to give people this level of substantive rights and then deny them the right to say they’re married, too.
The most interesting part of the analysis concerns an old California case striking down the law barring interracial marriage. The grass eaters had argued that there was no inherent right for gays to marry, on the ground that gay marriage was a fundamentally different thing from heterosexual marriage, and that no right to gay marriage had ever existed in California. The court said that if this were true, then the court got the earlier case wrong, too, because there had never been a right to interracial marriage before, either. It’s actually a pretty well written opinion.
As to Jose’s other point, no, there’s no migraine, not even a headache. Kentucky and most other grass eater states have passed laws specifically saying that they will not recognize gay or lesbian marriages. One exception to the full faith and credit clause of the constitution is that each state is free to reject marriages from other states if they are against the “public policy” of the forum state; these statutes define the public policy of the states as precluding gay and lesbian marriages, just as they used to define it as excluding interracial marriages. We’ve just moved from one prejudice to another.
June 22nd, 2008 at 9:40 am
Personally,I.don’t.agree.with.gay.marriages,but.even.if.I.did,I.don’t.think.it’s.right.
to.make.people.accept.something.they.aren’t.totally.comfortable.with.I.don’t.think.
pastors.should.face.hate-crime.laws,if.they.choose.not.to.marry.gays.I.don’t.think.
churches.should.face.fines.if.they.preach.against.the.gay.lifestyle,the.more.gay.
marriages.that.begin.coming.down,the.more.you’ll.see.what.I.just.mentioned.
June 22nd, 2008 at 10:53 am
The implication that legalizing gay marriage means that churches would be forced to conduct them or that preachers who refused to marry gays would be tried for hate crimes is baseless. In our society, churches have a lot of freedom to preach and teach and worship as they see fit (unless they’re really politickin’ instead of preaching, of course). The Roman Catholic church has long refused to allow folks to get married in their church if one person is divorced. I understand that they also ban church weddings if the bride and groom are fertile but don’t plan to have kids, or if couple doesn’t plan to raise the children as Catholics. That’s the church’s theology and they have the right to exercise their authority over church members. The whole problem is when a church decides to exercise its authority over non-members. Then you have the church-state mess, with the church meddling in government business or vice versa. Not wise.
A couple of years ago there was a big kerfluffle about some redneck minister of the Gospel who refused to marry a couple because they were of different races. Again, there was nothing illegal about the the fellow’s actions and I don’t know that anyone even tried to press charges. But he did get a ton of ridicule and bad publicity.
June 22nd, 2008 at 11:50 am
I.hope.you.are.right.Jose,but.say.it’s'baseless’,consider.Jesse.Jackson?Is.that’baseless’?
June 22nd, 2008 at 1:56 pm
Mike, what ARE you talking about? What did Jackson allegedly say? The good Reverend is not well known for a deep understanding of Constitutional law, or many other topics.
June 22nd, 2008 at 3:36 pm
Jose,Jesse.Jackson.has.been.pushung.hate-crime.legislation.for.the.last.8.years,granted.he.isn’t.on.this.bandwagon.yet,I’ll.agree.
with.you,but.wait.until.we.see.more.gay.marriages,and.more.pastor’s.saying.no.Wait.and.
see.if.there.isn’t.some.sort.of.hate.crime.bill.brought.up.I.hope.I’m.wrong,I.truly.do
June 24th, 2008 at 11:49 am
I guess I don’t understand your point, Mike. Are you in favor of hate crimes?
June 24th, 2008 at 3:16 pm
I don’t know what Jesse Jackson’s stance is on gay marriage, but it seems like most black churchgoing Americans, regardless of political affiliation, don’t favor making it legal. Rather than embracing gay rights as civil rights, I’ve heard more blacks bristle at those who highlight the similarities.
All this is to say that Mike has a lot more stuff to worry about than Jesse Jackson forcing some kind of hate crime legislation on churches that don’t choose to perform gay ceremonies. It’s nonsensical and unbelievable in so many ways.
Mike, if you have something specific to support your fears then please share.
June 27th, 2008 at 3:45 pm
I don’t know, it’s somewhat scary, that here we are in the 21st century, and yet we’re more backward then we were in the 1950′s. I’ve never liked the hate crime bill, I don’t believe in mistreating anyone, but why is it alright to dislike someone of your own race and sexual orientation, but yet it seems if you dislike someone of a different race or sexual orientation, your labled as either a racist or sexist, it’s not right. I like and dislike someone because of what they are on the inside, not the outside. And no, I don’t agree with gay marriages, but I’m also not a gay basher, I have several gay friends, I don’t agree with it, but I’ve had a good time going to dinner with several gay ladies I know. As far as Jesse Jackson, he is always spouting off that soimething is racial when it’s not, I’ve never trusted him, he may or may not come out on the gay marriages, but I think I can safely say this, someone will if enough people protest. But it remains to be seen.