By Michael McGough
1:42 PM PST, December 7, 2012
In announcing Friday that it will hear two cases involving same-sex marriage, the Supreme Court did not include a statement from Justice Antonin Scalia saying “I told you so.” But the thought surely has crossed the conservative justice’s mind.
In 2003, when the court overruled itself and struck down laws against homosexual sodomy, Justice Anthony M. Kennedy was emphatic in his majority opinion that the case “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” To which a peevish (and prescient) Scalia responded: “Do not believe it.”
Scalia went on: “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.”
I remember people mocking Scalia for this conjuring up of a “parade of horribles.” In 2003, mainstream opinion, even among supporters of gay rights, was that same-sex marriage was an issue for the future -- the distant future, not a decade in the future. And truth be told, some people who considered themselves supporters of gay rights were happy about that seeming state of affairs. The notion that support for gay rights equates to support for gay marriage is a recent one.
But back to Scalia’s prediction: We don’t know how the court will rule on the constitutionality of Proposition 8 or the Defense of Marriage Act. (Or if will rule on the merits at all. It has left itself an out in both cases by asking attorneys to brief questions of whether parties challenging the two enactments have standing to sue.) But it’s notable that its 2003 decision in Lawrence vs. Texas, the sodomy case, was cited in both the decisions it has agreed to review.
Scalia called it.
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