Antonin Scalia

How Scalia Helped Legalize Gay Marriage in Pennsylvania


In his decision this week striking down Pennsylvania's ban on gay marriage in Whitewood v. Wolf, U.S. District Judge John E. Jones III quoted extensively from the jurisprudence of Supreme Court Justice Anthony Kennedy. That came as no surprise, of course, since Kennedy has written all of the Court's biggest decisions in favor of gay rights, from Lawrence v. Texas (2003), which invalidated that state's ban on homosexual conduct, to United States v. Windsor (2013), which stuck down part of the 1996 Defense of Marriage Act.

Credit: Wikimedia / Public Domain

But Judge Jones also relied on a more surprising ally to reach his conclusion. That ally was Justice Antonin Scalia, the same conservative jurist who once railed against his Supreme Court colleagues for "sign[ing] on to the so-called homosexual agenda." How did Scalia help Jones? It's relatively simple. When it came time for Jones to perform a crucial piece of legal analysis on the constitutionality of the Pennsylvania gay marriage ban, he found Scalia to be a more useful guide than Kennedy. That sealed the deal and allowed Jones to legalize same-sex unions in the Keystone State. Here's how these strange judicial bedfellows came together.

Last term in U.S. v. Windsor, the Supreme Court was tasked with deciding whether Section 3 of the Defense of Marriage Act (DOMA), which had forbidden the federal government from recognizing same-sex unions that were permitted under state law, violated the equal protection component of the Fifth Amendment. Kennedy's majority opinion held that it did.

In dissent, Scalia lambasted Kennedy for sidestepping the Court's precedents governing equal protection cases. "The opinion," Scalia wrote in Windsor, "does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality."

Scalia had a point. Typically, when the Equal Protection Clause of the 14th Amendment (or the equal protection component of the Fifth Amendment) is at issue, the courts first decide what degree of judicial review is appropriate for resolving the case. There are three basic settings. The most lenient is rational-basis review (Scalia's "mere rationality"), where the courts extend broad deference to the government. The next level is called intermediate scrutiny, or sometimes heightened scrutiny. Here the government must shoulder most of the burden of proof and demonstrate that its statute is substantially related to an important government objective. Finally, there is strict scrutiny, the most exacting standard, which requires the government to prove both that the law serves a compelling government interest and that it is the least restrictive means for achieving that interest.

That may sound like a bunch of lawyers splitting hairs; but the real-world impact cannot be overstated. Rational-basis review stacks the deck overwhelmingly in favor of the government. ("It is enough," the Supreme Court held in one rational-basis case, "that it might be thought that the particular legislative measure was a rational way" for lawmakers to proceed. Emphasis on might be thought.) Intermediate scrutiny, by contrast, reverses the odds and forces lawmakers to mount a persuasive and verifiable defense of their contested statutes. In practical terms, rational-basis review allows a gay marriage ban to remain in force; intermediate scrutiny requires the ban to fall.

Yet when Kennedy wrote his Windsor opinion invalidating part of DOMA, he did not clearly adopt any of one of those differing levels of review. Instead, he spent the bulk of the opinion emphasizing the fact that DOMA singled out one class of Americans for abuse. At the same time, however, he also included certain language taken from rational-basis cases. But as Scalia complained in dissent, "the Court certainly does not apply anything that resembles that deferential framework." In other words, Scalia accused Kennedy of quietly deploying intermediate scrutiny without bothering to justify why that heightened approach was appropriate under the Court's precedents.

Which brings us back to Judge Jones and his ruling this week in Pennsylvania. Like every other federal judge weighing a state ban on gay marriage, Jones was duty-bound to follow relevant Supreme Court jurisprudence. But as noted above, the most directly applicable case, Kennedy's ruling on DOMA, offers no clear guidance on the appropriate level of judicial review a lower court judge should apply. That put Jones in a legal pickle. Should he defer to the Pennsylvania ban or not?

To answer that question, Jones turned to Scalia. "As Justice Scalia cogently remarked in his dissent," Jones wrote, "'if [Windsor] is meant to be an equal-protection opinion, it is a confusing one.'" Then, lest anyone miss the point, Jones proceeded to adopt Scalia's reading of Windsor: "Its discussion is manifestly not representative of deferential review." As Scalia saw it, Windsor was an intermediate scrutiny case in all but name. Jones happily signed on to that interpretation and applied a fatal dose of heightened scrutiny to Pennsylvania's gay marriage ban.

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  1. Did Kennedy or Scalia do anything to help get warrantless searches of our automobiles here in the commonwealth as well?

  2. I would certainly be less irritable on this topic if people would simply use accurate language.

    How Scalia Helped Legalize Mandate State Licensing of Gay Marriage In Pennsylvania.

    As far as I know, it wasn’t a crime to be gay-married in Pennsylvania. You just couldn’t get a license for it.

    Persisting in using inaccurate and misleading language even after it has been pointed out raises . . . . questions.

    1. Forcing states to grant licences to gay couples when they grant them to straight couples is the very essence of “equal protection”. If they aren’t gonna get of out of the marriage permission business entirely (which is the fault of the conservative right exclusively) then they should have to grant them to gay folks as well.

      You are thinking about this backwards. The SC is simply forcing them to exclude one less group from their “special benefits and legal relationship status” permission list.

      1. Forcing states to grant licences to gay couples when they grant them to straight couples is the very essence of “equal protection”.

        Only if you assume the conclusion that marriage means “any two adults” rather than “man and woman.”

        The real question here is who has the authority to (re)define “marriage”. I don’t the courts do.

        1. The authority should lie with the legislative branch. They should be the ones passing laws that establish what the “legal definition” of any term can be.

    2. The good of The Cause, of course.

    3. There is no getting married in Pennsylvania unless the state recognizes it. So you are simply wrong, in all aspects of you point.

      1. Pretend there is an r there and everything I said stands.

  3. This case does show that the gay rights movement in the judiciary is engaged in a sub rosa campaign to elevate gays to protected class status.

    Intermediate scrutiny is typically used in Equal Protection cases when the alleged victims are in a protected class. The courts are already treating gays as a protected class, de facto granting all the legal offensive legal weaponry that is provided to members of protected classes.

    1. Considering it used to be illegal in most states to simply be gay, it makes sense that being gay would be a protected class if there was going to be protected classes.

    2. The goal is that sexual orientation be a protected class. This will protect heterosexuals the same as Gay/Lesbian Americans.

      The logic is the same as for race, sex and religion. There is simply no rational basis to treat people differently based on which bucket they are in for these categories.

  4. For those of you wondering how the fuck these types of “scrutiny” could’ve come about, the problem is that people writing legal documents often don’t take their own words seriously. Read the definitions in the Federal Food, Drug and Cosmetic Act (or state pharmacy laws), then think about taking them literally, and how do clothes not become cosmetics and books not become medical devices? But obviously the writers of it didn’t mean that. So obviously the words can’t mean exactly what they say, and that goes for words in constitutions too. So then what do they mean? Keeps lawyers (including judges) in business.

  5. I have always wondered whether the rational basis should ever be allowed; it’s almost a 100% basis for “do whatever you want.” If it were up to me, all Supreme Court cases would rely upon strict scrutiny.

    It isn’t all that onerous or unreasonable, and still allows a lot of leeway: a compelling interest, and least amount of coercion. These are common sense standards held by all normal human beings, except those who have Magic Badges and Magic Powers of Government – dubious charms indeed.

    1. It bears repeating: Rational-basis scrutiny is ridiculously one-sided in the government’s favor. As long as a reasonable person could believe that the law is related to its stated purpose, it passes. Even if that belief is completely, provably false, even if the purpose is moronic bullshit. In a just world it wouldn’t exist at all, and in a slightly less-just one it would be restricted to clearly enumerated powers where there’s not even a hint of doubt that the legislature has authority to seek the goal in question.

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