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Since this doesn't seem to have been picked up by anyone else here, I thought that I would talk about this article from The Atlantic titled "The Twilight of Antonin Scalia".

Garrett Epps adapted his book American Justice 2014 Nine Clashing Visions on the Supreme Court for a great piece in the magazine. Court watchers, Scalia haters and especially gay rights advocates would do very well to read it.

The article spends more than a few words detailing Scalia's garrulous insoucience and the author certainly enjoys laying out the Justice's weaknesses. They do not detract from this very interesting point though.

Antonin Scalia may have authored the very legal opinion that will ring the death knell for laws that restrict same sex marriage. The subtitle of the article is "The conservative hero's fiery 2012 dissent on same-sex marriage could be his most influential opinion—but not in the way he intended."

Epps points to Scalia's dissent in United States v. Windsor from 2013. The Court, in Windsor, struck down Section 3 of the Defense of Marriage Act (DOMA). Section 3 kept the federal government from recognizing same sex marriages that were legal under state law.

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. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
I will lift a paragraph directly from Epps:
With stunning swiftness, federal district judges have heard and decided challenges to state same-sex marriage bans, and by May 2014, a dozen judges had struck them down—first in Utah; then in rapid succession, Ohio, Illinois, Virginia, Kentucky, and even Texas.

Judges young and old, male and female, gay and straight, Republican and Democrat, read Windsor and saw in it a logic that doomed state efforts to confine marriage to its “traditional” function as a union of man and woman. And some of what they read was not in the majority opinion but in Scalia’s dissent. In fact, about half of the opinions explicitly cited Scalia’s words.

One decision that Epps points to is Ohio district Judge Timothy Black in Obergfell v. Wymslo
And now it is just as Justice Scalia predicted—the lower courts are applying the Supreme Court's decision, as they must, and the question is presented whether a state can do what the federal government cannot—i.e., discriminate against same-sex couples ... simply because the majority of the voters don't like homosexuality (or at least didn't in 2004). Under the Constitution of the United States, the answer is no ....
What a hell of a result for the man who once wrote, in Lawrence v. Texas:
“Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct.”
Since I really should add something of my own for copyright reasons and POSNAD attackers, I say this: Serves him right!

I will end this with a bit from another legal scholar:

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Comment Preferences

  •  Hoist by his own arrogant petard (9+ / 0-)

    with a extra few yanks by his fellow jurists.

    It's like a judiciary atomic wedgie.

    "Go well through life"-Me (As far as I know)
    This message will self-destruct upon arrival in the NSA archives in Utah.

    by MTmofo on Fri Aug 22, 2014 at 12:44:18 AM PDT

    •  MT - not at all (2+ / 0-)
      Recommended by:
      Jon Sitzman, MTmofo

      Scalia was just noting the logical progression of the ruling by the majority. He was right, his analysis and logic were spot on. In my view that is getting us to the right end point, marriage equality for all, but you can't fault Scalia for stating the obvious. If Scalia has left that paragraph out of his dissent it would have had no impact on the subsequent rulings, because Scalia's point was obvious.

      The same progression will also lead to the legal acceptance of polygamy in the US. The foundation of all the same sex marriage laws, that consenting adults should be able to be bound together by legal matrimony, hold true for polygamy as well. Polygamy is widely practiced around the world, and there is no reason marriage in the US should be confined to two people.

      "let's talk about that" uid 92953

      by VClib on Fri Aug 22, 2014 at 05:07:06 AM PDT

      [ Parent ]

      •  The thing about polygamy is, (11+ / 0-)

        all of our marriage laws are written for two people right now.  It really makes no difference what gender those two people are, which is why marriage equality has been relatively easy to implement.  When it comes down to it, marriage is a business relationship between two people.  With three or more, ensuring that the business relationship is equitable to all parties becomes exponentially more complex.

        With polygamy, you'd have to rewrite a bunch of laws, especially concerning rights over money, inheritance, children, etc.  It would be a mess.

        The other thing is, while being gay or trans is not a choice, polygamy IS most certainly a choice (to be fair, so is monogamy).  But because of that, the court cases that might surround polygamy would not at all look the same as the ones we've been seeing right now.

        I like the recent ruling they had in Utah (don't have a link, unfortunately).  If you have two married people living in a household, and others living there as well in some sort of more complex relationship, that's fine, do what you want, as long as the marriages themselves are binary.

        "Believe nothing, no matter where you read it, or who said it... unless it agrees with your own reason and your own common sense." -The Buddha

        by Brian A on Fri Aug 22, 2014 at 05:14:10 AM PDT

        [ Parent ]

      •  I have been the clergy presence for an end-of-life (3+ / 0-)

        conference where I was supporting the wife (a second wife, but of fifteen years of marriage) and working for consensus among the whole family including adult children who wanted everything done. The wife knew from long previous conversations her husband's expressed wishes, and as wife her choices took precedence over the children's.

        How would it work with polygamy? Would we revert to first wife, second wife and so on, as the Chinese system did? If we want all spouses to have equal standing I can see real problems ahead for polygamy.

        I am perhaps a bit more skeptical at the moment because a dear friend recently got badly burnt in a polyamorous situation. Obviously monogamy is not a guarantee of good behavior, either.



        Is it true? Is it kind? Is it necessary? . . . and respect the dignity of every human being.

        by Wee Mama on Fri Aug 22, 2014 at 06:20:20 AM PDT

        [ Parent ]

        •  I'd suggest that the solution might be for the (0+ / 0-)

          people who are married to come up with their own legal arrangements rather than have the state come up with a standard which gets applied to everyone, regardless of fit.

          Straight, mostly-wealthy, couples are often already getting around the state's rules with pre-nuptial agreements.  AFAIK the litigation of these agreements has generally found them to override the state's cookie-cutter laws.

  •  I think Rachel pointed it out long time ago! - n/t (2+ / 0-)
    Recommended by:
    gravlax, davidincleveland
  •  it goes back even further: the Texas case. (4+ / 0-)

    The Texas case that overturned "sodomy laws" nationwide.

    One or another rightwinger Justice whose name escapes me at the moment, wrote a dissenting opinion to the effect that if we can't legislate on the basis of morality, then not only do the sodomy laws fall, but all other laws that regulate morality, including laws against gay marriage and even laws against (gasp!) masturbation.  Yes, he said that.  

    If you can't outlaw "sodomy," you can't outlaw "Onanism" (the Sin of Onan, who "spilled his seed on the ground"), and you can't outlaw gay marriage.

    Check!

    Mate!

    GOTV as if your life depends on it, because somebody's life does.

    by G2geek on Fri Aug 22, 2014 at 02:11:52 AM PDT

    •  Well, the law is not supposed to be used to (3+ / 0-)
      Recommended by:
      OHdog, AJayne, davidincleveland

      control individual behavior; it is supposed to address behavior that is injurious to others. And, I would suggest, that injury has to be material and measurable. It's sort of ironic that personal rights, which are trumped, to their detriment, by property rights, are actually affirmed by reference to the material property of which a person is being deprived. The problem is, and I guess this is philosophical, that rights not only need to be respected by others to be realized, but there has to be a material element to them that can be measured. We know abstract rights exist, but they can only be realized in material form -- something our senses (touch, sight, hearing) can perceive.

      Just as a person can only be free if he can put one foot in front of another and walk away.

      That's why pedestrians keep being arrested. They are exemplars of liberty who present a challenge to law enforcers tied to their mobile cages. Perhaps it was putting cops in patrol cars that turned them mean.

    •  That was Scalia n/t (2+ / 0-)
      Recommended by:
      davidincleveland, G2geek

      "There is no crack in our pies." - Michelle Obama 6/30/2014

      by CPT Doom on Fri Aug 22, 2014 at 09:46:02 AM PDT

      [ Parent ]

  •  Scalia has no issue with conflicting thoughts (3+ / 0-)
    Recommended by:
    Alex Budarin, sfbob, davidincleveland

    He claims to use the Founders writings for guidance in interpreting the Constitution yet is very adept at ignoring the ones that conflict with his idiotic ideology. He has also written opinions that completely conflict with what he has written earlier. It's just not important to him, only his present ideology and mind set is.

    Scalia is a jackass.

  •  Lawyers and judges have been citing Scalia's logic (0+ / 0-)

    in a raft of Federal marriage cases ever since he said it. This fact has been noted with approval many times here on dKos.

    Back off, man. I'm a logician.—GOPBusters™

    by Mokurai on Fri Aug 22, 2014 at 11:17:44 PM PDT

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