How Scalia Helped Screw Texas' Case Against Gay Marriage

WASHINGTON -- When U.S. District Judge Orlando Garcia of the Western District of Texas struck down the Lone Star State's ban on gay marriage on Wednesday, he cited the words of a man who is normally a friend to conservatives: Supreme Court Justice Antonin Scalia.

Garcia, a Clinton appointee who had previously served in the Texas legislature, could have cited any number of opinions to undermine the state's contention that the ability of many opposite-sex couples to procreate, as well as "tradition," justified denying equal marriage rights to same-sex couples.

But the federal judge didn't cite just any Supreme Court justice. He chose to quote from Scalia's dissent in the landmark 2003 case Lawrence v. Texas, which struck down the state's anti-sodomy law.

In 2003, Scalia was trying to argue that the Supreme Court was wrong to overturn laws based on moral choices. He wrote that the decision in Lawrence v. Texas called into question laws against same-sex marriage (and also, he believed, bigamy, adult incest and prostitution) because other justifications for banning same-sex marriage -- including those that Texas would cite in support of its own ban a decade later -- weren't legitimate.

In explaining why tradition alone can't form a rational basis for a law, Garcia pointed to Scalia's argument in the 2003 dissent that the phrase "the traditional institution of marriage" is "just a kinder way of describing the State’s moral disapproval of same-sex couples."

And in explaining why the biological ability of many opposite-sex couples to procreate doesn't justify denying equal rights to same-sex couples, Garcia cited Scalia, too.

"[W]hat justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry," Scalia wrote at the time.

Garcia isn't the first federal judge to use Scalia's words to undermine a state's defense of a gay marriage ban. In Utah, Ohio, Virginia and Kentucky, federal judges fully embraced Scalia's predictions last year in his dissent in United States v. Windsor, the case that struck down key portions of the federal Defense of Marriage Act. Scalia wrote in that dissent that he believed the majority's logic would inevitably lead to other judges striking down same-sex marriage bans.

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