In same-sex marriage case, Scalia turned out to be prescient

The Supreme Court didn’t agree with Justice Antonin Scalia when he predicted in the court’s decision striking down the federal government’s Defense of Marriage Act that it would lead to judges striking down state bans on same-sex marriage.

“We may in the future have to resolve challenges to state marriage definitions affecting same-sex couples,” Chief Justice John Roberts wrote in a dissent to the majority opinion. “That issue, however, is not before us in this case.” His comments on that point were mirrored by justices who struck down DOMA.

Indeed, Justice Anthony Kennedy wrote for the majority that the ruling only affected states where same-sex marriages are legal and did not free same-sex couples to marry in states that do not permit it.

But in a typically scathing Scalia dissent, he insisted that the Court was defining far more than the Defense of Marriage Act of the federal government; it was deciding the future of same-sex marriage in individual states.

“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it,” Scalia wrote. “I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”

Scalia has turned out to be correct.

The so-called “Windsor decision,” ostensibly striking down only DOMA, is being cited as federal judges strike down same-sex bans in the states.

Today, the ban in Texas is the latest to fall. Guess what Supreme Court decision was cited to justify it?

“Regulation of marriage has traditionally been the province of the states and remains so today,” U.S. District Judge Orlando Garcia wrote in his opinion today. “In United States v. Windsor, the United States Supreme Court recently held that the federal government cannot refuse to recognize a valid state-sanctioned same-sex marriage. Now the lower courts must apply the Supreme Court’s decision in Windsor and decide whether the state can do what the federal government cannot — discriminate against same-sex couples.”

“Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution,” he said.

The ruling doesn’t mean that same-sex couples in Texas, one of the nation’s most conservative states, can now marry. Judge Garcia stayed his ruling pending an appeal.

But it’s incredible irony that the Supreme Court justice most against same-sex marriage has provided the pointers on how same-sex marriage bans could fall.