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How Antonin Scalia helped open the door to gay marriage nationwide
In retrospect, the high court's ruling was the moment of sea change predicted by the famously acerbic justice
Setting up the dominos.
Setting up the dominos. (Mark Wilson/Getty Images)
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cross the country, same-sex marriage bans are quickly going the way of the Dodo Bird. And in the latest case, a federal judge in Virginia on Thursday struck down the state's prohibition on gay marriage, saying that the nation had "arrived upon another moment in history when We the People becomes more inclusive, and our freedom more perfect."

The ruling, which overturned a ban Virginians passed in 2006 with three-fourths of the vote, is the biggest blow yet to opponents of same-sex marriage. (If upheld on appeal, it could directly lead to similar laws falling in other Southern states like South Carolina.) And it continues on the spate of recent rulings nationwide — including some in deep red states not known for their social liberality — that have chipped away at state-level anti-gay marriage laws.

That all these rulings are coming rapid-fire in the wake of the Supreme Court's twin landmark opinions on the issue is no coincidence. Rather, it's the direct result of how the high court framed its rulings.

In striking down the Defense of Marriage Act, the Supreme Court held that the federal government could not deny benefits to gay couples. In the second case, the court allowed gay marriage to move forward in California on entirely technical grounds, sidestepping the bigger question of whether all state bans on gay marriage are unconstitutional.

Still, the subtext was clear: gay marriage bans don't hold water. And following that ruling, state and federal courts have, to this point, unanimously agreed.

Federal judges in Utah and Oklahoma, in the past few months, have struck down same-sex marriage bans in those states, while state courts in New Jersey and New Mexico have done the same. Other recent rulings will require Ohio to recognize same-sex couples on death certificates, and compel Kentucky to honor same-sex marriages performed in other states. Meanwhile, Nevada's attorney general and governor this week said they would no longer defend the state's gay marriage ban when it goes before a federal appeals court.

Justice Antonin Scalia predicted this wave, writing in his DOMA dissent (called "intemperate," "blistering," and "scathing" by SCOTUS watchers) that the majority opinion's pro-gay marriage rhetoric would not be lost on lower courts.

"How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status," he wrote. "No one should be fooled; it is just a matter of listening and waiting for the other shoe."

And indeed, all of the rulings from federal judges have directly addressed that point — even using it as ammunition.

In a little bit of judicial trolling, U.S. District Judge Robert Shelby riffed on Scalia's warning to explain why he was striking down Utah's gay marriage law, "buttressing his legal analysis with Scalia's warnings," explains Talking Point Memo's Dylan Scott. Shelby wrote:

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law. [Shelby via Talking Points Memo]

And Judge Shelby isn't unique in quoting Scalia's analysis.

In Kentucky, U.S. District Judge John G. Heyburn turned to Scalia's dissent to make his own case, "nimbly outmaneuvering the justice by using his own clever linguistic twists against him," says Slate's Mark Joseph Stern. Judge Terrence Kern in Oklahoma did the same. As did Judge Arenda Wright Allen most recently in Virginia.

Scalia, of course, would be furious by these judges' rhetorical flourishes. And in fairness, Justice Scalia's dissent was used more or less as a nifty turn-of-phrase, not the focal point of the state rulings as the majority decision was. But it seems that even his detractors agree with Scalia's central analysis: Though the Supreme Court opted for a limited ruling on the issue, it nonetheless encourages other courts to, one by one, strike down state-level bans across the country.

Jon Terbush is a staff writer for TheWeek.com covering politics, sports, and other things he finds interesting. He has previously written for Talking Points Memo, Raw Story, and Business Insider.

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