Justice Scalia’s Petard and Same-Sex Marriage
Justice Antonin Scalia is well known not only for his conservative views, but also his literary language. So perhaps he might appreciate how the Shakespearean phrase, “hoist with his own petard,” could describe how his dissents are being used to support the very outcome he derided: the constitutional recognition of same-sex marriage.
In United States v. Windsor decided in June 2013, the Court, by a bare majority, declared unconstitutional section 3 of the Defense of Marriage Act (DOMA) which prohibited federal recognition of same-sex marriages even if the marriages were recognized by state law. As in two other important cases involving lesbian and gay rights, Romer v. Evans (1996) and Lawrence v. Texas (2003), Justice Kennedy wrote an opinion for the majority longer on rhetoric than on analysis and Justice Scalia wrote a dissent guaranteed to be called “scathing.” In these dissents, Justice Scalia not only criticized the majority opinion’s lack of rigor and exercise of judicial supremacy, but he warned of the consequences of the Court’s decision.
In Romer, Justice Scalia’s alarm was loud, if imprecise. He famously accused the Court, like other legal elites—including law schools—of taking sides in the “culture wars” by prohibiting discrimination on the basis of sexual orientation.
At that time, Congress had just passed the Solomon Amendment, denying federal funding to law schools that enforced their non-discrimination policy against military recruiters because of the military’s exclusion of homosexuals. A decade later, the Court unanimously upheld the constitutionality of the Solomon Amendment in Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (2006). But Justice Scalia’s dissent in Romer might also be read as signaling the end of Bowers v. Hardwick (1986), in which the Court upheld the constitutionality of criminalizing homosexual sodomy; Scalia’s dissent in Romer chastises the majority for not even mentioning this holding.
Lawrence v. Texas achieved Scalia’s implicit prediction regarding the demise of Bowers v. Hardwick. In his dissent in Lawrence, he repeats (and at times quotes) his earlier accusations regarding lack of rigor and assertion of judicial supremacy. He adds a further criticism regarding the Court’s failure to honor stare decisis.