A year ago in U.S. v. Windsor, Justice Antonin Scalia argued in his dissent that the majority decision, while insisting it was reserving power to the states, made it inevitable that federal courts would overturn state gay marriage bans.
"As far as this Court is concerned," Scalia 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 was right.
Since June of 2013, when Windsor was announced, there have been 18 separate federal court decisions against same-sex marriage bans in the states, and none upholding.
In Windsor, the court held that the federal Defense of Marriage Act violated various provisions of the Constitution, including the Equal Protection Clause of the 14th Amendment, because it had "the purpose and effect to disparage and to injure” the “personhood and dignity" of gay couples.
In his dissent, Chief Justice John Roberts accepted the majority's claim that Windsor would not affect state laws against gay marriage. Roberts noted that the majority opinion appealed to the “historic and essential authority" of the states "to define the marital relation" as a reason to overturn the federal marriage law.
But Scalia disagreed. The notion that the states have historic authority in marriage regulation, he argued, would quickly fall to the overriding logic of Windsor, which was that singling out same-sex relationships for stigma violates principles of due process and equal protection under the U.S. Constitution.
His prediction came true again June 25 when the two latest federal decisions came down. In Indiana, a federal district court judge struck down the state's marriage statute and did not issue a stay, allowing marriage licenses to be issued immediately.
And at the 10th Circuit Court of Appeals, a three-judge panel upheld a decision from last December in which a federal district court judge struck down Utah's marriage law. The new ruling immediately overturned any remaining gay marriage bans in all states in the 10th Circuit, including Utah, Wyoming, Colorado, New Mexico, Kansas and Oklahoma. However, the circuit decision did leave the stay in place, pending appeal to the U.S. Supreme Court.
The post-Windsor saga thus came full circle, as Utah was the first domino to fall in December 2013.
Three days after that decision, a federal judge in Ohio ruled that the state must respect same-sex marriages performed in other states. That ruling is on hold pending appeal to the 6th Circuit.
"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's chagrined prophecy was thus, ironically, cited as authority.
A few weeks later, a federal judge in Oklahoma echoed the Utah decision. That case was on hold pending appeal, and is now moot since the 10th Circuit has decided the Utah case in the same circuit.
In a busy February, Kentucky was ordered to respect same-sex marriages from other states. As with Ohio, that ruling remains on hold pending an appeal to the 6th Circuit. A few days later, Virginia was ordered to both allow gay marriages and respect those from other states. That ruling is also on hold pending appeal.
Since then, federal court decisions have changed marriage laws in Illinois, Texas, Tennessee, Michigan, Idaho, Oregon, Pennsylvania, Wisconsin and Indiana.
Some state courts have also acted, perhaps borrowing ideas from Windsor and anticipating the direction of federal rulings. New Mexico and New Jersey legalized gay marriage by judicial decree, with no appeal, while state judicial action in Texas and Arkansas is on hold pending appeal.
Altogether, 14 states have had their laws directly overturned by federal court decrees, either requiring them to perform or recognize same-sex marriages, and an additional three states — Colorado, Kansas and Wyoming — were swept up in the 10th Circuit decision this week. (New Mexico, part of the 10th Circuit, was not affected as a state court had already legalized same-sex marriage.)
Most of these federal decisions remain on hold pending appeal to circuit courts. The 10th Circuit decision this week, as noted, is on hold pending appeal to the Supreme Court.
“Justice Scalia is described as an incorrigible truth teller,” University of Utah law professor Clifford Rosky told the Deseret News last December. “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 is a vocal supporter of same-sex marriage legalization.
Whether Scalia simply called the impact of Kennedy's ruling in Windsor accurately, or whether he inadvertently helped nudge it along, there is now little doubt that his prediction has been borne out faster than anyone supposed a year ago.
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