It’s funny to put this picture here, since his dissent is being cited so much in bringing about marriage equality.
In the last piece I wrote, I linked to a concise examination of which cases are most likely to reach the Supreme Court, and which will bring nationwide marriage equality the fastest. 2013 was already a year where the inevitability of marriage equality became solidified in many people’s heads, but after Utah, it feels pretty safe to say that we’re going to achieve that goal faster than we ever thought. There is, of course, much work yet to be done and this is no time to take an eye off the ball, but there are just too many signs pointing in the direction of full marital equality in the next several years.
Josh Marshall explains that one of the biggest “tells” predicting that eventuality is that the 10th Circuit, one of the most conservative in the nation, denied Utah a stay on the lower court’s ruling:
Both judges[in Utah and Ohio], perhaps with an element of trolling or humor, cited Justice Scalia’s furious dissentin United States v Windsor, in which he claimed that the Court’s decision to overturn DOMA would lead logically and inevitably to overturning every state gay marriage ban in the country.
Now, this might all be written off as the work of two federal trial judges. But the tell is in the response of the 10th Circuit, one of the country’s most conservative. When Utah appealed to the 10th Circuit to block further gay marriages until its appeal could be heard on the merits, the judges said no. Because the two standards for such a denial are ‘irreparable harm’ and likelihood to prevail on appeal, the appellate judges – one Bush appointee, one Obama appointee – seemed to be hinting that Utah is likelihood to lose.
In other words, the inexorable Scalia logic appears clear to them too.
Scalia was right. That’s why he was so furious in his dissent last summer. He doesn’t have the Constitution behind him; he simply hates the idea of marriage equality. Scalia’s dissent, though, acknowledges the truth that once you commit to treating LGBT people equally under the Constitution, there’s no going back.
Josh also points out that, by the time the next case reaches the high court, an even greater majority of Americans will support marriage equality and more and more gay and lesbian couples will have married in Utah, and so on, making full equality a sort of fait accompli:
In this sense – and not to be overly dramatic – it’s almost reminiscent of the Fall of the Berlin Wall – when actions on the ground, literally on the ground, swept a lot of details and technicalities before it and presented authorities with faits accompli, which they were likely to accept eventually, much more rapidly than they would have preferred.
So yes, this will percolate a bit, as they say. Decisions will come up through the individual Circuits. In pretty short order, the Supreme Court will be forced to revisit the issue. And their logic in the Windsor case will join forces with the march of public opinion to make it almost impossible for them not to issue a broad ruling which invalidates every gay marriage ban in country.
He predicts that full marriage equality will be the law of the land during the Obama presidency. What a nice prediction to be able to make as we close out 2013.
