Antonin Scalia said it first: precedent favors gay marriage.

The SCOTUS is set to hear prop 8 and DOMA in the spring, which means it’s about time to resuscitate the past words of Justices likely to constrain the happiness of others because of what some people wrote down thousands of years ago.


In a landmark 2003 decision, the Court ruled that states may not outlaw sodomy among consenting adults of the same sex. The minority dissent in the 6-3 ruling in Lawrence v. Texas was authored by Justice Scalia, who argued that the Court’s reasoning effectively, if not explicitly, knocked down the legal basis for outlawing gay marriage.

“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,” Scalia wrote.

Justice Anthony Kennedy’s majority opinion said the Court’s ruling against anti-sodomy laws “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”

Scalia’s retort: “Do not believe it.”

“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,” he wrote.

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.”

Some part of me suspects that 2012 Scalia will be unconvinced by the judicial opinion of 2003 Scalia.  That guy clearly didn’t know what he was talking about.

About JT Eberhard

When not defending the planet from inevitable apocalypse at the rotting hands of the undead, JT is a writer and public speaker about atheism, gay rights, and more. He spent two and a half years with the Secular Student Alliance as their first high school organizer. During that time he built the SSA’s high school program and oversaw the development of groups nationwide. JT is also the co-founder of the popular Skepticon conference and served as the events lead organizer during its first three years.

  • penn

    Why will 2012 Scalia be unconvinced by 2003 Scalia? Supreme court justices aren’t bound by precedent, so Scalia will oppose marriage equality in 2013 for the same reasons he supported anti-sodomy laws in 2003. There’s no inconsistency there at all.

    • Baal

      “Supreme court justices aren’t bound by precedent”
      Technically, they are bound by precedent but that there is no way to hold them accountable*.
      *Depending on the matter, congress can de facto overrule the SCOTUS by passing different legislation and mooting the courts basis for a ruling. This happened recently with Kelo case.

      I’m not holding my breath that Scalia will vote pro-gay in any fashion. Instead, he’ll find an offensive and reactionary position to take on both cases regardless of prior rulings. My current bet the 5/4 and 4/5 on prop 8 and doma respectively. Kennedy will be the split. Best guess on grounds (w/o having read the briefs) will be plaintiff standing(or other procedural non-sense) and congressional action means doma ok.

      • penn

        If there is no binding requirement to follow precedent, then they are not bound, technically or otherwise. Supreme court justices cast votes against previous precedents all the time, and in this case it’s the only logically consistent thing for Scalia to do. His argument at the time of Lawrence v. Texas was that it would set a precedent for gay marriage that lower courts would be bound to follow, and he was right. The supreme court ruling in Lawrence v. Texas has been a widely cited precedent in these cases, and is partly responsible for the fact that the supreme court is now hearing them.

        • Amyc

          “Supreme court justices cast votes against previous precedents all the time, and in this case it’s the only logically consistent thing for Scalia to do.”

          This is why it’s important to read dissenting opinions because they can be used in later cases to upend precedent. Of course the doctrine of stare decisis provides much of the basis for our common law legal system, so it usually takes more than a generation to overturn precedent completely, but it’s been done before (see: Plessy v. Ferguson and Brown v. Board of Education). Nevertheless, all lower courts (state and federal) are bound by the precedents set by the Supreme Court. Basically, only the Supreme Court can overrule USSC precedent.

          Also, it’s good to actually read the cases that supposedly set precedent. Too many times people just read the head notes and they don’t really know what the issues or the specific key facts were, so they end up comparing situations and points of law that aren’t comparable.

  • Charlie

    So when will we start making “I’m Gay for Scalia” t-shirts and mugs?

  • Frank Bellamy

    As I recall, Justice Scalia’s argument in his dissent in Lawrence was basically “the majorities reasoning leads the conclusion that the court should legalize gay marriage, that would be a terrible outcome, therefor the majorities reasoning is wrong.” If the supreme court legalizes gay marriage next year, I fully expect to see a very eloquent and entertaining version of “I told you so” to appear in Justice Scalia’s dissent. But that wouldn’t be a change in Justice Scalia’s position, it would be a confirmation of it. The change would be in the position of Justice Kennedy, who in 2003 declined to extend the reasoning to gay marriage, and in 2013 would do exactly that.

  • Silent Service

    While I agree with Scalia that Lawrence vs. Texas opened the door for today’s events, I do not think that it will have much bearing on the outcome of the Prop 8 case or the DOMA case. These cases will be decided on very narrow issues in order to prevent the SCOTUS from making a broad ruling or dramatically changing laws. Prop 8 will be overturned by declaring that the Prop 8 Defense Team does not have standing, dodging any need to actually rule on the validity of Prop 8. The DOMA case will be ruled on a States’ Rights vs. Federal Rights basis where those portions of DOMA that allow the Fed to ignore legal state issued marriage certificates will be ruled an unconstitutional intrusion into a traditional power granted to the states. This will again allow the SCOTUS to dodge actually ruling on the right of same sex couples to marry.

    Our legal right for consenting adults to marry who we wish will not be decided just yet.

    • baal

      I would historically agree with you but with Obama getting a second term, I see the 4 + Kennedy doing their best to move the ball as far as possible down the field as fast as possible. Historical deference to narrowly decided opinions may be on the way out. It’d be interesting to spend some time see if someone has done analysis on this.