NOM BLOG

"Just as Justice Scalia predicted..."

 

From Sunday, a piece by Robert Barnes at The Washington Post's Politics page is worth noting.

Barnes explains how "Justice Anthony M. Kennedy’s DOMA decision practically provided a blueprint for how [recent legal challenged to state marriage laws] might be successful," and he observes that Justice Antonin Scalia predicted this fact with stunning accuracy:

Justice ScaliaWhen the court last June struck down the federal Defense of Marriage Act [sic] and said the federal government must recognize same-sex marriages performed in those states where it was legal, Scalia sounded a loud warning.

[...]

Scalia’s words have been highlighted in the two recent decisions about same-sex marriage that will return the issue to the Supreme Court.

Barnes himself seems a more intelligent reader of Scalia's remarkable dissent in the Windsor case than the judges in the recent Utah and Ohio cases. While these judges actually cite Scalia and claim that they are simply "applying" the DOMA decision at the state level, Barnes points out that the full logic of Scalia's written opinion from June is much more complex and nuanced [emphasis added]:

Of course, Scalia did not say in his Windsor dissent that lower courts must adopt such an interpretation.

“Lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples,” [Scalia] wrote, adding: “Lord, an opinion with such scatter-shot rationales as this one . . . can be distinguished in many ways.”

Still, as Scalia pointed out, Justice Anthony M. Kennedy’s DOMA decision practically provided a blueprint for how such challenges might be successful.

Read the entire article here.