One of the best things about U.S. District Judge Robert Shelby's decision in Kitchen, et al. v. Herbert, et al. is that the District Court mined Supreme Court Justice Antonin Scalia's dissents in Lawrence v. Texas and U.S. v. Windsor for his most acid, adolescent, passive-aggressive rants about how treating gay people as actual human beings might someday compel us reg'lar folk to actually regard them as actual human beings and (gasp!) let them have the same rights we do, then threw them right back in Scalia's corpulent, bigoted face and made him swallow them whole.
Follow me below the fold for some judicial knife-twisting treats of deliciousness.
The Utah district court's opinion (pdf) is a thorough and well-reasoned rundown of all the reasons why the arguments against marriage equality fail every basic legal and constitutional standard, and fail to satisfy even the most permissive level of scrutiny to which state laws that burden particular groups or individuals are subjected by the courts. I won't recap the whole decision here; please do go and read it for yourself. The basic gist of it is what I've been saying for years: There is simply no good reason not to allow same-sex couples to legally marry, and treat them as married, each the other's spouse, under the law.
Now, the basic gist of Justice Antonin Scalia's writings in cases involving gay rights (e.g., Romer, Lawrence and Windsor) is, typically, "I have nothing against gay people, but here are all the things I have against gay people." But what he sometimes does is passive-aggressively rant about what the refusal of his less-bigoted brethren to countenance the mistreatment of people he hates (excuse me, people of whom he has "moral disapprobation") might lead to. In the process he creates a sort of unintentional irony, thinking he's making a case for why his ideological opponents are wrong when in fact he is, without realizing it, doing the opposite.
That's where Judge Shelby comes in. Starting with Windsor:
In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion . . . is that DOMA is motivated by “bare
. . . desire to harm” couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
[Windsor,] 133 S. Ct. at 2709 (citations and internal quotation marks omitted). 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.
Kitchen, Slip Op. at 13 (emphasis added).
The district court then twists the knife a little:
Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it: “I do not mean to suggest disagreement . . . 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.” Id. at 2709 (Scalia, J., dissenting).
Kitchen, Slip Op. at 15-16 (emphasis added).
Nice, eh? Indeed, the district court showed admirable restraint in declining to include what immediately followed in Scalia's petulant, acid dissent in Windsor:
Consider how easy (inevitable) it is to make the following substitutions in a passage from today's opinion ante, at 2694:
"DOMA's This state law's principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities."
Or try this passage, from ante, at 2694:
"DOMA This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence,...."
Or this, from ante, at 2694 — which does not even require alteration, except as to the invented number:
"And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives."
Similarly transposable passages — deliberately transposable, I think — abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the "personhood and dignity" which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that "personhood and dignity" in the first place Ante, at 2696. ...
By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court's declaration that there is "no legitimate purpose" served by such a law, and will claim that the traditional definition has "the purpose and effect to disparage and to injure" the "personhood and dignity" of same-sex couples[.]
Windsor, 133 S. Ct. at 2709-10 (Scalia, J., dissenting).
I suppose Judge Shelby didn't want to subject anyone to any more of the Revered Justice's adolescent bile, so at this point I won't either. This is just a high-school opinion piece with better grammar. But what Scalia describes above, implying a horrifying and unacceptable outcome that no one would abide, is precisely what the Utah district court did.
And speaking of which, Judge Shelby wasn't done:
In Lawrence v. Texas, the Court overruled its previous decision in Bowers v. Hardwick, 478 U.S. 186 (1986), and held that the Due Process Clause protected an individual’s right to have sexual relations with a partner of the same sex. 539 U.S. at 578. The Court ruled: “The Texas [sodomy] statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” Id. While the Court stated that its opinion did not address “whether the government must give formal recognition to any relationship that homosexual persons seek to enter,” id., the Court confirmed that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” and held that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” Id. at 574 (emphasis added). The court therefore agrees with the portion of Justice Scalia’s dissenting opinion in Lawrence in which Justice Scalia stated that the Court’s reasoning logically extends to protect an individual’s right to marry a person of the same sex:
Today’s 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. 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”?
Id. at 604-05 (Scalia, J., dissenting) (citations omitted).
The Supreme Court’s decision in Lawrence removed the only ground—moral disapproval—on which the State could have at one time relied to distinguish the rights of gay and lesbian individuals from the rights of heterosexual individuals.
Kitchen, Slip Op. at 30-31 (emphasis added).
In one fell swoop, the Utah court cut down the last remaining leg in Justice Scalia's retrograde rationalization for keeping people he hates in their place. In effect, Justice Shelby declared that No, Mr. Justice Scalia, "moral disapprobation" alone is not a legitimate reason to deny basic civil rights to a whole category of people.
I'm not gay (not that there's anything wrong with that), but trying to understand the reasoning behind exclusivists' (which is what I call them) opposition to marriage equality has led to some scary places. The Utah and New Mexico decisions that came down this past week are an important step in the right direction, as state and federal courts begin to articulate precisely why marriage equality must eventually come: because it is required by our Constitution.
I predicted, in the lead-up to the Windsor decision, that Justice Scalia would not miss a chance to rail against gay people and gay rights as he's done so many times before. His judicial writings have more and more come to resemble the transcript of any given Fox News pundit show and there's no reason to expect that will change. He is in fact so oblivious now that when he goes off on a rant like the ones cited above, by me and by Judge Shelby, ostensibly telling the world what awful consequences lie at the bottom of that slippery slope, the rest of us -- including, now, other judges -- can only read it, shrug, and say, "Well, yes."