[personal profile] ganainm
Who else was surprised to see Judge Vaughan R. Walker quote Justice Antonin Scalia in his Prop. 8 decision? Scalia's no friend of same-sex marriage. Citing him in a decision like that is like citing Richard Dawkins in a sermon.

To me it looks like a legal poke in the ribs.

Near the middle of Walker's decision, he quotes Scalia's dissent in Lawrence v Texas (2003), in which the Supreme Court overturned Texas's law against sodomy:

"If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct . . . what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'?"

Scalia is not being agreeable here. Far from it: he is dissenting, bitterly and sarcastically. He has no problem with homosexuals, he says, but he also has no problem with laws against consensual acts, even in private, on the basis of "moral disapprobation." In dire tones -- just before the sentence Walker quotes -- he reflects on Canada's then-recent legalization of same-sex marriage and says, "Today's decision dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned."

Back in 2003, Walker could not have known he would preside over the challenge to Prop. 8, so I'm sure he didn't read that and think, "Yes, it does!" But in writing his decision in the Prop. 8 case, he may have been delighted to find a virtual road map to the legalization of same-sex marriage laid out for him by one of its opponents; and he must have allowed himself at least a chuckle when he quoted Scalia's rhetorical question. He was seizing one of the enemy's guns and turning it against him.
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Gan Ainm

September 2010

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