What Justice Scalia really said

Supreme Court Justice Antonin Scalia

Supreme Court Justice Antonin Scalia

A recent opinion piece in The Salt Lake Tribune tried to recruit Justice Antonin Scalia to the cause of redefining marriage. Here’s the passage:

Even Justice Antonin Scalia, an ardent foe of gay rights, has recognized the folly of Utah’s position.

In his dissent, Justice Scalia wrote that the “the view this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking,” and “[h]ow easy it is, indeed how inevitable” it is for courts to apply the Windsor decision to strike down discriminatory state marriage laws like Utah’s Amendment 3.

Could this be true? Does Justice Scalia really think Utah is wrong and the federal courts should overturn the state’s marriage amendment? What did Justice Scalia really say?

Far from approving judicial usurpation of the lawmaking role such as the Utah cases seeks, Justice Scalia (as even a cursory reading of the decision would make clear) argued the Supreme Court has no role in approving or disapproving marriage laws.

Justice Scalia, in fact, powerfully indicts the precise arguments made by the authors of this opinion—that the only reason legislators or voters would have had for retaining marriage is hatred. Take these passages from the opinion:

  • “even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid — indeed, downright boring — justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act [the federal Defense of Marriage Act].”
  • “the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.”

Justice Scalia notes the majority opinion in the DOMA case was:

affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

The authors of the op-ed in the Tribune would have done well to dwell on this passage, which rebukes their stunted view of their fellow citizens:

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence — indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

The op-ed suggests Justice Scalia approves the invalidation of state marriage laws. How then, can the authors explain these passages?

It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.


I do not mean to suggest disagreement with THE CHIEF JUSTICE’s view that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples — or even that this Court could theoretically do so. Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.


The result [of a court opinion invalidating state marriage laws] will be a judicial distortion of our society’s debate over marriage — a debate that can seem in need of our clumsy “help” only to a member of this institution.


As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices — in other words, democracy. Victories in one place for some are offset by victories in other places for others. Even in a single State, the question has come out differently on different occasions.

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

In sum, Justice Scalia’s opinion is a forceful refutation of the idea that the U.S. Constitution is merely a vessel to be shaped to fit the preferences of elite attorneys. It is a warning against legal hubris that blinds its possessors to some very basic facts obvious to those unblinkered by ideology: Every child ever born has a mother and a father. Children are entitled to be raised by a mother and father, whenever possible those who created them, who are committed to their joint child and to one another. A just and decent society does not encourage the creation of motherless and fatherless homes solely to satisfy adult desires.