I come to praise Scalia, not to bury him.

Because it is considered to be bad breeding to speak ill of the dead, I will now say something very nice indeed about Antonin Scalia, the dead jurist.

Without Scalia’s scathing and snarky dissents in Lawrence v. Texas and United States v. Windsor, we would not have gotten to marriage equality as quickly as we did than if he had just kept his mouth shut.

You can read real reporters’ commentary here and here, but I’ll lay out the basics for you.

In Lawrence v. Texas (2003), the Supreme Court struck down Texas’s sodomy law and in so doing struck down every state law criminalizing sodomy (as legally defined) in general and homosexual behavior in particular.  Scalia’s dissent essentially said, “Well, if you’re not going to rule on cases by going on what most people think is icky, you’re going to end up letting the homos marry, mark my words.  Get off my lawn.”1

In United States v. Windsor (2013), the SCOTUS struck down the federal Defense of Marriage Act and its discrimination against same-sex marriages, which were already legal in several states.  Scalia whined, “My esteemed colleagues are poopy-heads for making me look like a bad guy for hating the queers, and now all the fags are going to sue and we’re not going to be able to stop them from marrying like normal people, believe you me.”2

His words came back to haunt him as circuit court judge after circuit court judge wryly used his dissents to underscore the basic fairness and justice of overturning marriage equality bans in the several states where, in fact, all the fags sued. The axe fell when the Sixth Circuit refused to overturn a couple of states’ anti-icky-homo-wedding laws—when the circuit courts disagree, the cases end up in front of the Supremes for a final decision.

And that, my children, is how we got Obergefell v. Hodges (2015).

I like to think of it all like a real-life version of the final episode of Boston Legal, in which Alan Shore (James Spader) and Denny Crane (William Shatner) argue before the Supremes that Denny be allowed to use an experimental drug to ameliorate his Alzheimer’s.  At the end of the episode, having stopped an injunction preventing them from marrying morganatically, they fly to their remote Maine resort to get married, only to find that they have no minister or justice of the peace.  Iudex ex machina, Tony (who had been grousing from the bench that he wanted Shore to stop talking so he could go on vacation) shows up, fishing reel in hand, and is prevailed upon to marry the two.  Which he does, albeit grumpily.

So here’s to the good a man does in his life—we all owe a debt of gratitude to Antonin Scalia for moving us into the 21st century.


1 I may have paraphrased a bit.

2 Here too.

One thought on “I come to praise Scalia, not to bury him.

Leave a Reply

Your email address will not be published. Required fields are marked *