Scalia and gay marriage

Loved this Milbank column on Scalia and gay marriage.  Scalia’s problem is that he’s all about allowing states to regulate matters as they see fit, but increasingly that includes allowing same-sex couples to marry.  Anyway, here’s Milbank:

While few think the justices will legalize gay marriage nationwide, court watchers expect they will strike down the 1996 Defense of Marriage Act (DOMA), which trampled on states’ authority to regulate marriage. By leaving marriage up to the states, the march toward legalization will gradually continue.

This puts Nino in a tough spot. When he stood in the schoolhouse door a decade ago in his dissent in the sodomy case, he wrote: “Let me be clear that I have nothing against homosexuals, or any other group, promoting their agenda through normal democratic means. Social perceptions of sexual and other morality change over time, and every group has the right to persuade its fellow citizens that its view of such matters is the best.”

Now gay-rights supporters have done just that. If Scalia is to honor his own principle, he’ll vote to strike down DOMA and give his blessing to those states that wish to legalize gay marriage. But don’t count on it.  [emphasis mine]

Indeed.  As one of my FB friends who linked this put it (perhaps too harshly, but on point), “Scalia’s record of behavior is evidence as to why we should institute term limits in the courts. We like for our justices to removed from the constantly shifting winds of public opinion, but Scalia realizes the worst fears we have for our judiciary; an egotistical sociopath whose decisions are based on his own antiquated prejudices, not law.”

Scalia’s problem as Milbank so archly puts it is that:

Scalia finds himself with a growing list of foes: public opinion, empirical evidence, his own writings and an increasing number of conservative legal thinkers.

And yet, most are convinced that he will turn his back on all these things simply due to his own prejudices.  It would certainly be nice to proven otherwise, but I won’t be holding my breath.

About Steve Greene
Professor of Political Science at NC State

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