Scalia, as predicted

Three years ago I made a prediction about Political Figure Antonin Scalia regarding his professed adherence to stare decisis as it relates to same-sex marriage:

Lawrence v Texas established adequate precedence for the constitutional legalization of same-sex marriage. At least it did in political figure Scalia’s view. (In reality, the 14th Amendment established it.) That means that once same-sex marriage makes it way to the Supreme Court in the coming years, Scalia is going to rule in favor of it. That is, if he really does care about stare decisis. But I wouldn’t bet on it.

I hope I’m wrong, but here’s my prediction: Scalia is going to rule against same-sex marriage in overt defiance of the principles he pretends he holds.

What I was arguing here was that Scalia had whined in Lawrence that the Court’s decision to disallow governmental interference in the bedroom of consenting adults had, effectively, established precedence for same-sex marriage. That is, Scalia wrote in his dissent that if the Court could overturn a state’s ability to legislate against something based upon a moral opposition to homosexuality, then it would also have the power to overturn a state’s ban on same-sex marriage. Since Scalia is a self-professed lover of stare decisis – he believes past decisions must be taken into account in new decisions – it would only make sense for him to side with same-sex marriage proponents. Even though he dissented in Lawrence, the decision set precedent that, according to Scalia himself, the Court had the necessary latitude to strike down any ban on same-sex marriage that was premised on moral opposition. Today, however, he dissented in Obergefell v. Hodges, in blatant violation of his alleged principles and in full satisfaction of my three year old prediction.

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One Response

  1. You are so right. As a SCOTT’S junkie, I applaud your foresight and thoughtful anslysis. Thanks.

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