Justice Antonin Scalia went over the top the last time the U.S. Supreme Court considered same-sex marriage. From an opinion he wrote this week in an immigration case called Kerry v. Din, I suspect he is determined not to do that again.
On June 26, 2013, the Supreme Court announced United States v. Windsor. In Windsor, the majority invalidated the federal Defense of Marriage Act. In the future, the federal government would be required to recognize same-sex marriages if they were legal in the state where they were performed.
The decision enraged Scalia. He wrote that “the real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ‘bare ... desire to harm’ couples in same-sex marriages.” A “bare desire to harm” has been, since 1973, an automatic disqualification in constitutional law. If that’s what Windsor meant, then marriage equality was a done deal.
Scalia ridiculed the majority’s decision by casting it in the broadest possible light. But in so doing, he may have turned his opinion into a self-fulfilling prophecy. In the summer and fall of 2013, decisions by lower courts, as foretold, cited Windsor to require states to perform and recognize same-sex marriages. Many of them also used the Scalia dissent to buttress their conclusion that state same-sex marriage bans had no constitutional validity. In one Utah decision, for example, District Judge Robert J. Shelby wrote that “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.”