OK, I'm late to the game in commenting on US District Judge Vaughn Walker's ruling overturning California's Proposition 8. But I haven't seen anyone comment on Walker's hilarious use of Supreme Court Justice Anthony Scalia's writings to support his ruling that enshrines marriage as a fundamental right not be denied on the basis of sexual orientation.
Scalia wrote a dissenting opinion in the Supreme Court's 2003 6-3 Lawrence v. Texas decision that overturned a law against sodomy. In his dissent, Scalia says it's OK for a majority to prohibit sodomy because of a belief that it's "immoral and unacceptable," and says the same principle applies to same-sex marriage, adult incest, and bestiality. He decries a Supreme Court "that has largely signed on to the so-called homosexual agenda" and declares that courts have no role in protecting homosexuals from those who would exclude them from jobs, volunteer positions, or lodgings.
In short, Scalia is not a likely vote to uphold Walker's ruling, should the case get to the Supreme Court. Yet to build one of his findings of facts, that no state has ever required
that partners in a marriage be willing or able to have children, Walker quotes from Scalia's dissent in Lawrence v. Texas:
If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what 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.
It seems like an impish poke, to use Scalia's dissent to bolster the case for same-sex marriage. Yet Walker chose not to quote, for some reason, the larger point that Scalia was making in his Lawrence v. Texas dissent:
Today's [majority] opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.
Maybe that's because Walker anticipates that the Prop. 8 case, Perry v. Schwarzenegger, will be the one in which the majority of the Supreme Court will finally agree to dismantle the legal distinction between heterosexual and homosexual marriages.
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