How Scalia Helped Screw Texas' Case Against Gay Marriage

[ashling]

http://www.huffingtonpost.com/2014/02/26/scalia-gay-marriage_n_4861115.html?ncid=fcbklnkushpmg00000013

In explaining why tradition alone can't form a rational basis for a law, Garcia pointed to Scalia's argument in the 2003 dissent that the phrase "the traditional institution of marriage" is "just a kinder way of describing the State’s moral disapproval of same-sex couples."

And in explaining why the biological ability of many opposite-sex couples to procreate doesn't justify denying equal rights to same-sex couples, Garcia cited Scalia, too.

"[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry," Scalia wrote at the time.

Garcia isn't the first federal judge to use Scalia's words to undermine a state's defense of a gay marriage ban. In Utah, Ohio, Virginia and Kentucky, federal judges fully embraced Scalia's predictions last year in his dissent in United States v. Windsor, the case that struck down key portions of the federal Defense of Marriage Act. Scalia wrote in that dissent that he believed the majority's logic would inevitably lead to other judges striking down same-sex marriage bans.

Suggest a correction

[Gothmog]

1. I have printed a copy of the opinion and will read it this weekend

I love the fact that Scalia's dissents are being used to advance the cause of equality

[Melissa G]

2. +1