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Scalia is nothing if not consistent

So, Judge Shelby in Utah indirectly gives credit in his decision to Justice Scalia's earlier assertion that the U.S.Supreme Court's decision to repeal DOMA inexorably implies that state bans on marriage equality are unconstitutional.

Which, yup, let's give credit where it's due. Absolutely.

But as long as we're here, we really ought to also credit Scalia's earlier characterization of Lawrence v Texas as "...the product of [..] a law-profession culture, that has largely signed on to [..] eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Incidentally, I really cannot wrap my brain around the fact that in 2003 the Supreme Court ruled on whether it's OK to imprison people for having gay sex, and in 2013 they ruled on whether it's OK to deny federal benefits to married gay couples.

I mean, I _remember_ Lawrence v Texas, and it still feels like it has to have been from a generation or two ago. A decade? Really?



( 8 comments — Leave a comment )
Dec. 22nd, 2013 06:37 pm (UTC)
Heck, I still remember Bowers v Hardwick and find it stunning we've come so far in my adult lifetime.
Dec. 22nd, 2013 11:21 pm (UTC)
Dec. 23rd, 2013 04:52 am (UTC)
I am not sad to see his words used against his apparent ends. Nor would I be sad if he quit the bench and stalked off in a huff, but that much luck seems unlikely.
Dec. 23rd, 2013 03:20 pm (UTC)
Scalia is not stupid
Whatever else you might say of him, he's a man with a good logical brain. It's interesting because so many conservatives saw state DOMAs as a backstop in case the Federal DOMA fell, but he's the only (or one of the only) prominent conservatives I know who can reason well enough to say "Sorry, if the Federal law falls then the state laws have to go as well."
Dec. 23rd, 2013 09:58 pm (UTC)
Re: Scalia is not stupid
His real problem is that he can't properly articulate what the moral oppobrium is in a way that would satisfy the smart part of his own brain--or anyone else's. That's why they are all falling one by one: God Said So is indeed no longer a reason for law and there's nothing else left.

Edited at 2013-12-23 09:59 pm (UTC)
Dec. 24th, 2013 08:40 pm (UTC)
Re: Scalia is not stupid
The people were passing state DOMAs didn't know why the federal DOMA would be shot down, so passing a redundant DOMA might have protected them when the federal one was taken down. Even if there was only a 25% chance that the state law would remain valid when the federal law was overturned (or repealed) then it was worth doing to protect the people in your state at least.

Scalia had a very different perspective. He knew that the reasons he had to overturn the federal DOMA applied to the state laws as well.
Dec. 29th, 2013 10:35 am (UTC)
Five(ish) years ago, whenever the gay marriage push really started to be a thing, I really thought it was crazy premature. Not that I didn't want gay marriage, but I thought that seemed like quite a leap given how recent Lawrence v Texas was, or hell, how recent Matthew Shepard was.

(I am totally glad I was wrong.)
Dec. 29th, 2013 03:31 pm (UTC)
I remember getting into that discussion with several people on LJ at the time, friends of mine who were essentially making the same prematurity argument, usually in the form of 'why force a redefinition of marriage if what we actually want is equal civil rights, regardless of label?'.

Which I agree was very reasonable-sounding at the time. There was a legitimate concern of backlash, overreach, etc.

IIRC, my comment at the time was that like it or not, what the queer community was asking was whether we and our families were normal, and now that we'd actually asked it out loud the country was obligated to give us an actual answer. And that yeah, it was entirely possible that the answer would be "Actually, not really, no," and that would suck, but that was just where we were... and sometimes it's better to ask what my (friends, family, nation, species) really thinks of me, at the risk of getting an honest answer I don't want and having things get awkward, than to continue stumbling along trying to pretend they consider me an actual person while not being certain and being afraid to ask.

And yeah, I was mostly expecting to get the negative answer from outside of my little isolated liberal enclave.

And yeah, it's nice to be wrong. Sometimes, when I actually ask the question that scares me, it turns out the answer isn't nearly as bad as I'd feared.
( 8 comments — Leave a comment )

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