What Antonin Scalia Got Right About Same-Sex Marriage

A judge in Pennsylvania is the latest to cite Scalia while recognizing same-sex marriage rights.

Supreme Court Justice Antonin Scalia takes part in an interview with Chris Wallace on 'FOX News Sunday' at the FOX News D.C. Bureau on July 27, 2012. (National Journal)

State bans on same-sex marriage are falling like dominoes in the courts — just as Supreme Court Justice Antonin Scalia predicted.

A federal judge in Pennsylvania struck down the state's ban on same-sex marriages Tuesday, writing, "We are a better people than these laws represent, and it is time to discard them into the ash heap of history."

It's the 14th consecutive legal victory since the Supreme Court's landmark marriage rulings last year, according to the Associated Press.

The Supreme Court's rulings last year didn't say that states must recognize same-sex marriage. But lower-court judges have taken note of the Supreme Court's reasoning and rhetoric, striking down state marriage laws even on grounds the Supreme Court didn't quite reach.

Scalia, who says there's no right to same-sex marriage, probably hates it. But he did call it.

When the Supreme Court invalidated part of the Defense of Marriage Act last year, it said that same-sex couples can't be denied federal benefits — but that it was leaving state marriage laws alone. Scalia, though, openly mocked that proposition in an angry dissent, arguing that the way the Court's DOMA opinion was written, lower courts would surely use it to strike down state laws restricting the right to marry.

"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," Scalia wrote in his dissent last year.

On Tuesday, Judge John Jones — a Republican appointee — specifically cited Scalia's dissent in his decision striking down Pennsylvania's marriage law.

Here's Scalia's prediction:

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.... The majority's limiting assurance will be meaningless in the face of language like that, as the majority well knows.

And here's Jones's ruling in Pennsylvania:

"As Justice Scalia cogently remarked in his dissent, "if [Windsor] is meant to be an equal-protection opinion, it is a confusing one."¦ Windsor found DOMA unconstitutional because "no legitimate purpose overcomes the purpose and effect to disparage and to injure."

Scalia's biggest beef with the Court's ruling on DOMA was that, in his view, it fudged on its specific legal rationale. The majority, led by Justice Anthony Kennedy, avoided the most sweeping proclamations of a constitutional right to marry, because that would have directly implicated state marriage laws as well.

The Court's legal reasoning may have been murky, but the rhetoric describing DOMA as discrimination for the sake of it was crystal clear.

So while lower-court judges haven't disagreed with Scalia that the Supreme Court's DOMA ruling was vague, they do still disagree on the fundamental question of whether same-sex couples can marry — and they're recognizing that the Supreme Court gave its stamp of approval, legal confusion notwithstanding.

"There is no precise legal label for what has occurred in Supreme Court jurisprudence "¦ but this Court knows a rhetorical shift when it sees one," an Oklahoma judge wrote in a decision striking down that state's ban earlier this year.

If Scalia's 2013 predictions continue to hold, it won't be long before marriage equality is back before the Supreme Court — and then becomes legal in all 50 states.