None of this was really surprising given Kennedy’s track record. Kennedy was the author of two key gay rights precedents: Romer vs. Evans in 1996 and Lawrence v. Texas in 2003 — both of which struck down state laws the court held illegitimately discriminated against gays. In both cases, Kennedy relied heavily on the “animus” or “stigma” imposed by the legislature.
Kennedy’s Windsor decision last June strongly echoed those two earlier decisions, leaving readers confused about whether the court was striking down the federal DOMA to allow states to define marriage on their own or was laying the a foundation to strike down state laws and impose a uniform definition of marriage under Supreme Court auspices.
Justice Antonin Scalia was pretty sure it was the latter. He said so in a blistering dissent, criticizing the majority for incoherence and predicting the court would soon strike down all state laws banning gay marriage.
“I promise you this,” Scalia wrote after outlining Kennedy’s harsh judgment against the motives of DOMA’s framers, “The only thing that will 'confine' the court’s holding is its sense of what it can get away with.”
Scalia doubted that the “court which finds it so horrific that Congress irrationally and hatefully” acted against the dignity of gay couples would look the other way when state governments were adjudged to have done the same. “As far as this court is concerned,” he wrote, “no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition," Scalia wrote.
The other shoe
It is no surprise that both federal judges in this week's gay marriage decisions cited not only Kennedy’s decision in Windsor but specifically pointed to Scalia’s dissent as proof that their interpretation of what Kennedy meant was correct.
"The question presented is whether a state can do what the federal government cannot — i.e., discriminate against same-sex couples simply because the majority of the voters don't like homosexuality,” wrote Judge Timothy Black in the Ohio decision, citing the majority in Windsor and Scalia’s dissent. “Under the Constitution of the United States, the answer is no.”
“Scalia is described as an incorrigible truth teller,” said Rosky. “When sodomy laws were struck down in Texas, he said marriage was next, and when the federal marriage laws were struck down last summer, he said state laws were next.” Rosky said that passages from Scalia’s dissent “barely had to be changed at all” for Shelby’s purposes in the Utah case.
Rosky understands the confusion surrounding the Windsor decision, given its apparent emphasis on state authority to define marriage. But every time Kennedy’s decision nodded in the direction of state control, he said, “they also said that every state law governing marriage must comply with federal constitutional guarantees.”
In Rosky’s view, Shelby’s decision is neither unexpected nor the result of a freelancing judicial activist. It is rather, he argues, the logical follow up from a clear invitation offered by the majority of Supreme Court justices and properly flagged in dissent by Scalia.
Scalia himself, Rosky said, were he sitting on the district court bench, would have to have agreed that the precedent of Windsor was an invitation to strike down Utah’s law.
"It makes sense to get this decided and off with the circus train,” said U.S. District Chief Judge Robert Jones before upholding Nevada’s constitutional gay marriage ban in 2012. The train is now getting crowded, with Utah and Ohio joining in.
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