Supreme Court Paved Way for Gay Marriage, Scalia Said Nearly a Decade Ago

Posted on Dec 10, 2012

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Justice Antonin Scalia.

All eyes will be on the Supreme Court in June when the justices are expected to decide the legality of the Defense of Marriage Act and California’s Proposition 8, two landmark cases that will have widespread implications on the hot-button issue of same-sex marriage in this country. Although it’s the first time same-sex marriage has made its way to the high court, we can glean information about how the justices will possibly vote based on other cases involving gay rights.

Take, for instance, this little nugget conservative Justice Anton Scalia left us in Lawrence v. Texas, the blockbuster 2003 decision that ruled states cannot criminalize sexual acts between two consenting adults of the same gender. In the minority dissent, Scalia wrote that the court’s reasoning behind striking down the sodomy laws in Texas “leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples.”

His dissent also said, “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.”

More from Talking Points Memo:

The Reagan-appointed justice accused the majority on the Court of having “taken sides in the culture war” and having signed on to the “homosexual agenda.”

“The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts — and may legislate accordingly,” Scalia wrote. “The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage.”

Ten years later, public opinion has shifted dramatically in support of marriage equality. And next spring the Supreme Court will consider whether or not the Defense of Marriage Act — the 1996 law that prohibits federal recognition of same sex marriage — also violates the Constitution’s guarantee of equal protection. Two federal appeals courts have ruled that it does.

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—Posted by Tracy Bloom.

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