Utah Judge “Agrees with Scalia,” Strikes Down Gay Marriage Ban

Expanding the LGBTQ Conversation
Dec. 20 2013 5:10 PM

Utah Judge “Agrees with Scalia,” Strikes Down Gay Marriage Ban

Justice Antonin Scalia
He interpreted my dissent ... how?

Photo by Alex Wong/Getty Images

On Friday, Federal District Judge Robert Shelby struck down Utah’s gay marriage ban, describing it as an unconstitutional violation of due process and equal protection. The opinion isn’t the model of clarity we saw in New Mexico on Thursday: Shelby waffles on the scrutiny question, spills too much ink on Windsor’s alleged federalism, and spends a strange amount of time recapping the plaintiffs’ meet-cute. (“Karen and Kate met online through a dating website and were immediately attracted to each other when they first met in person.”)

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers science, the law, and LGBTQ issues.

Yet Judge Shelby’s opinion remains a delightful read, primarily for its willingness to take Justice Antonin Scalia at face value. Shelby sprinkles his opinion with Scalia’s doomsday dissents from Lawrence and Windsor, when the justice famously warned America that the rulings were mere Trojan horses for legalized nationwide same-sex marriage. To Scalia, these predictions were ominous and minatory: Fight back, the justice seemed to be saying, lest the terrible consequence of gay marriage blight our nation from coast to coast.


Judge Shelby has a similar reading of the court’s rulings in Lawrence and Windsor, though he casts it in a more positive light than Scalia’s dark prophecies. In fact, Shelby seems to be teasing Scalia at times in his opinion. “In his dissenting opinion,” Shelby notes, “the Honorable Antonin Scalia recognized that [legalized gay marriage] was the logical outcome of the court’s ruling in Windsor.” He then quotes from Scalia:

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.

Shelby’s response to this grim prediction?

The court agrees with Justice Scalia’s interpretation of Windsor. ... And Justice Scalia even recommended how this court should interpret the Windsor decision when presented with the question that is now before it.

And later, one final parting shot:

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.

Same-sex marriage, then, is really just one more laurel in Scalia’s legacy, following closely on the heels of Bush v. Gore and Citizens United. Scalia must be proud: Not many people can say they were integral in bringing about the end of anti-gay-marriage bans. But really, it couldn’t have happened to a better person.


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