CRYSTAL BALL

Two More Major Victories: How Scalia Predicted The Marriage Equality Juggernaut

scaliagal_8Just one day shy of anniversary of the Supreme Court ruling that struck down the Defense of Marriage Act, two more courts handed down major victories for marriage equality. A U.S. District Court of Appeals voted 2-1 to uphold the lower court decision striking down Utah’s marriage ban. But the ruling is even more far reaching. It applies to all the states covered by the circuit: Colorado, Kansas, New Mexico, Oklahoma, Utah and Wyoming.  The ruling is on hold while Utah appeals, so the changes won’t be immediate, unfortunately.

Meanwhile, in just slightly less conservative Indiana, a federal judge there struck down that state’s marriage ban. However, Judge Richard Young did not issue a stay with his ruling, so marriages began immediately (although a few counties dragged their heels to “review” the ruling).

The question at this point is whether marriage equality can ever lose in court. After a full year of court rulings, there has yet to be a single case where opponents have prevailed. In states that would seem to be among the least likely venues for change, like Utah, marriage equality has been made legal (at least temporarily).

Moreover, the backlash against marriage equality has never emerged. Of course, the dead-enders, like NOM, are fulminating, but even hard-core conservatives are either lackluster in their defense of traditional marriage (Utah Gov. Gary Herbert says the ruling brings the case closer to “some finality,” which isn’t exactly an over-my-dead-body statement) or have simply given up, like Pennsylvania Gov. Tom Corbett.

Who could have predicted that this would happen? As it turns out, Supreme Court Justice Antonin Scalia did.

With amazing prescience, Scalia outlined just this turn of events when writing his scathing dissent in the DOMA case. In essence, he called the majority out for being disingenuous in saying the original ruling still left marriage laws up to the states. (It’s clear now the majority were afraid of getting too far out in front, so they just kicked the can down the road.)

“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,” 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.”

Or what other courts can get away with. And Scalia saw that coming as well. “The real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow,” Scalia wrote, “is that DOMA is motivated by ‘bare . . . desire to harm’ couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”

Indeed, that has been the conclusion that every court has reached so far.

Scalia probably takes no comfort in being right. He probably hates that several courts have actually quoted his dissent to justify striking down marriage bans as a kind of legalistic bear hug. One can only imagine what he will say when he writes his opinion–most likely another dissent–when marriage equality comes back before the Supreme Court. (The Utah decision looks like it could be the one the justices will face.) One thing is for certain, though: pay close attention to where Scalia says things are heading. So far, he’s been right on the money.