Scalia Predicted It: Equal Rights Means Equal Rights

"It has never yet been discovered how to make a man unknow his knowledge, or unthink his thoughts." --Tom Paine, The Rights of Man

"A house divided against itself cannot stand. I believe this government cannot endure, permanently, half slave and half free. I do not expect the Union to be dissolved--I do not expect the house to fall--but I do expect it will cease to be divided. It will become all one thing or all the other."
--Abraham Lincoln in his "House Divided Speech"

United States District Court Judge Robert J. Shelby's masterful December 20, 2013 decision striking down Utah's ban on same-sex marriage is headed to the Supreme Court. The Tenth Circuit Court of Appeals, which takes cases from Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah, refused to stay the decision and nearly 1,000 jubilant gay and lesbian couples have married in the state in just over a week.

The outbreak of marriage equality in conservative Utah is another huge and momentous crack in the crumbling wall of marriage discrimination against gay Americans. So the Attorney General of the state is preparing a last-ditch appeal to the Supreme Court to turn back the mounting tide of equal rights and freedom.

The state's petition will first reach Associate Justice Sonia Sotomayor, who oversees cases in this group of states. She will be able to either decide the petition herself or refer it to the full Court. If she rejects the petition, as she is likely to do, Utah can appeal to the full Court.

Those people who thought the Court could buy some time after its electrifying 5-4 decision in June striking down a key part of the federal Defense of Marriage Act misunderstand the logic of constitutional freedom. The phony alibis for marriage discrimination have fallen away, and the Court's decision in United States v. Windsor leaves no doubt: gay people have an equal right to marry in the United States of America and the laws standing in the way impose irrational discrimination.

One delicious irony about Judge Shelby's decision is that he freely quoted Justice Antonin Scalia's doleful dissenting opinion in the Windsor case, which repeatedly predicted -- just as Scalia has been warning all along in other gay rights cases, like Lawrence v. Texas (2003) -- that the Court's decision to defend the equal rights of gay Americans would inescapably lead to the downfall of marriage discrimination. Judge Shelby wrote: "The court agrees with Justice Scalia's interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law."

There should be nothing surprising about either Justice Scalia's gloomy reactionary lament in Windsor or the fact that his words are coming back to haunt him now. As we pointed out several months ago in this PFAW Report, "Equal Protection or 'Social Tradition': The Supreme Court's Test in the Marriage Cases," Justice Scalia chastised Justice O'Connor back in 2003 for voting in Lawrence v. Texas to strike down anti-sodomy laws because they do nothing other than legislate "moral disapproval" of other people's private and consenting conduct. Scalia angrily observed that "'preserving the traditional institution of marriage' is just a kinder way of describing the State's moral disapproval of same-sex couples." In other words, if we can't put gay people in jail because we disapprove of their relationships, how will we stop them from marrying? As always, Justice Scalia's intellectual rigor and candor, from the other side of the barricades, have proven to have great predictive power about the unfolding of the law.

Still, it is not entirely clear what will happen on the Court in response to Utah. It requires four Justices to vote to grant a Cert petition and hear a case. Undoubtedly the hard Right of the Court -- Justices Scalia, Clarence Thomas, and Samuel Alito -- will feel Utah's pain intensely, and Chief Justice John Roberts is likely to want to join them, although he may count the votes and decide not to test Justice Anthony Kennedy's willingness to vote with the liberals to wipe away the stain of marriage discrimination.

After all, Justice Kennedy's reputation as a thoughtful figure on the Court has essentially been made by authoring the majority opinion in a series of brilliant decisions enunciating the equal rights of gay Americans: Romer v. Evans (1996), Lawrence v. Texas (2003), and most recently United States v. Windsor (2013). In Windsor, Justice Kennedy wrote that the "principal purpose" of the Defense of Marriage Act was "to impose inequality" and to put gay people in "a second-tier marriage," locking them out of hundreds of valuable federal benefits and rights. Significantly, he wrote that this legislation not only "demeans the couple" but "humiliates tens of thousands of children now being raised by same-sex couples." The table may now be set for another 5-4 gay rights decision that makes Justice Kennedy an historic figure.

If Justice Kennedy and the moderates can indeed count to five on the big question, one or more of them might even provide a vote for cert, on the theory that the country has hit a tipping point, with marriage now available to gay people in 17 states and the District of Columbia and public opinion racing ahead to full equality. It may be time to do what the Court did in Loving v. Virginia (1967), when it told the truth about "white supremacy" and wiped out the anti-miscegenation laws that made it a crime for Richard and Mildred Loving to marry.

Still, 33 states are blocking the courthouse door for gays seeking to wed and Justice Kennedy did sprinkle lots of pro-states' rights language in his dissenting opinion in Hollingsworth v. Perry (2013), Windsor's companion decision which punted on the merits of marriage discrimination. So the wheel is still in spin during this go-round.

But, as we stated in the "Equal Protection or 'Social Tradition'" Report, the overall dynamic of freedom and equality has been unleashed for our gay and lesbian citizens, and it will be nearly impossible to rewind the tape. On national marriage equality, it is just a matter of when -- not if. There is no way to get this movement or intelligent jurists to unthink their thoughts about fundamental rights, and ultimately, a country divided over a basic right like marriage for millions of people, can't stand. All signs point to equal rights and liberties for gay people in America.