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Expansion of same-sex marriage across the U.S.

Part 2:
Predictions by 2 conservative Justices
of the U.S. Supreme Court: Justices
Antonin Scalia & Anthony Kennedy.

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This topic is continued from a previous essay

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LGBT symbol Predictions of the future of SSM, as extracted from the writings of two U.S. Supreme Court justices:

The three most important rulings to date by the U.S. Supreme Court on same-gender sexual activity and marriage are arguably:

  • Lawrence v. Texas (Ruling released on 2003-JUN-26): This case involved a challenge to a Texas law that had criminalized same-gender private sexual activity by adults. By a 6 to 3 vote, the majority of Supreme Court Justices found that the law was unconstitutional. The ruling was sufficiently broad to also declare unconstitutional similar laws in Alabama, Florida, Idaho, Kansas, Louisiana, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Utah and Virginia. More details.

  • U.S. v. Wilson (released, by coincidence, precisely one decade later than Lawrence, on 2013-JUN-26): This ruling declared unconstitutional Section 3 of the federal Defense of Marriage Act (DOMA). This was the section which required the federal government to withhold access to 1,138 federal marriage benefits and protections from legally married loving, committed same-sex couples and their children.

  • Hollingsworth v. Perry (formerly Perry v. Schwarzenegger; also released on 2013-JUN-26): This is the lawsuit that challenged the constitutionality of Proposition 8 -- the citizen initiative that banned same-sex marriage in California in 2008-NOV. The court ruling resulted in marriage becoming available once more to same-sex couples in the largest state of the union. 1However, the effects of this ruling are largely symbolic. With the Field Poll showing that California adults now favored SSM by a ratio of 61% to 32%, even if this ruling had not restarted SSMs, a future citizen initiative to repeal Proposition 8 -- perhaps in 2014-NOV -- would certainly have passed overwhelmingly.
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Back in 2003, writing for the majority in Lawrence v. Texas, Justice Anthony Kennedy stated that:

"The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. Their right to liberty under (the Constitution) gives them the full right to engage in their conduct without intervention of the government....[They] are entitled to respect for their private lives...The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. ... In our tradition the State is not omnipresent in our home...Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct." 2

Justice Antonin Scalia wrote a blisteringly critical minority opinion in Lawrence. He took the unusual step of reading his dissent from the bench. He said in part:

"The court has largely signed on to the so-called homosexual agenda. ... The court has taken sides in the culture war. ... This reasoning leaves on shaky, pretty shaky grounds, state laws limiting marriage to opposite-sex couples. ... State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity ... every single one of these laws is called into question by today's decision," 2,3

Justice Scalia also wrote that the majority Justices pretended that they have left enough protections in place:

"... so that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada ... Do not believe it ... [The majority opinion] 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." 4

Justice Scalia's prediction that courts would make future rulings to legalize same-sex marriage came true one year later, when the Supreme Court of Massachusetts required the state legislature to change its marriage laws and become the first state to legalize SSM in the U.S.

In 2013-JUN, Robert Barnes, writing in the Washington Post, commented on Justice Antonin Scalia's minority opinion in U.S. v. Windsor. This is the case that declared the most important part of the federal Defense of Marriage Act (DOMA) to be unconstitutional:

"He all but sounded a fire alarm when Justice Anthony M. Kennedy said the court’s majority opinion in U.S. v. Windsor, which struck down a crucial part of the [federal] Defense of Marriage Act, was built on a bedrock of respect for a state’s ability to define marriage and 'confined to those lawful marriages' that states decided to sanction.

Scalia warned that the opinion by Kennedy and the court’s liberals was not actually a toast to federalism; it was larded with language that provided a road map for challenging the states that do not allow same-sex marriage. ..."

"Challenges to states that don’t allow gay marriage are inevitable.

'No one should be fooled; it is just a matter of listening and waiting for the other shoe,' Scalia said.

No one knows what the court will look like when the follow-up case on same-sex marriage arrives at the court. But this is known: Ginsburg is 80, and Scalia is 77; Kennedy is soon to be 77, and liberal Justice Stephen G. Breyer turns 75 this summer.

Whichever president appoints their successors will have much to say about what comes next." 5

Justice Scalia wrote in his dissent:

"By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority [opinion] arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has 'the purpose and effect to disparage and to injure' the 'personhood and dignity' of same-sex couples, The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows."

Justice Scalia did accurately predict the approach taken by lawyers for the plaintiffs in many dozens of lawsuits seeking marriage equality. However, the lawyers do back up their claim by referring to the Due Process and Equal Protection clauses of the 14th Amendment of the U.S. Constitution as the foundation of their arguments.

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Justice Scalia also commented in his dissent:

"As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by 'bare ... desire to harm' ... couples in same-sex marriages. ... How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. ... Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better." 6,7

Attorney Ruth Harlow who argued the Lawrence v. Texas case in 2013 before the U.S. Supreme Court predicted that same-sex couples will be able to marry anywhere in the U.S. by 2023. Commenting on Justice Scalia's dissents both in Lawrence (2003) and in Windsor (2013) she said that Justice Scalia:

"... is an amazingly good predictor of the future. ... Forecasting the future in a very animated and panicked way misapprehends what is happening here. He seems to think that the court is leading the country ... but it's the other way around, the country is leading the court." 8

Probably not even Justice Scalia could have predicted that the majority opinion in Windsor would be cited in a ruling by a Judge of a federal District Court within four weeks. Judge Timothy Black in in Ohio did exactly that! He based his ruling largely on U.S. v. Wilson in a case involving very unusual circumstances. He issued a temporary injunction ordering the recognition of a legal same-sex marriage by Ohio that had been recently solemnized in Maryland -- a practice prohibited by the marriage laws and constitution of Ohio.

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This topic continues in the next essay

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References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

  1. Robert Barnes, "Kennedy’s opinion may predict the future for same-sex marriage," Washington Post, 2013-JUN-26, at:
  2. "High Court Rejects Sodomy Law," CBS News, 2003-JUN-26, at:
  3. "Supreme Court strikes down Texas sodomy law," Law Center, 2003-JUN-26, at:
  4. Tim Harper, "Sodomy laws struck down: Highest U.S. court says Texas statute unconstitutional. Dissenter warns of legalized marriage for homosexuals," Toronto Star, 2003-JUN-27, Page A3.
  5. Robert Barnes, "Kennedy’s opinion may predict the future for same-sex marriage," Washington Post, 2013-JUN-26, at:
  6. Debra Weiss, "Scalia predicts the future, once again, in gay-marriage dissent," ABA Journal, 2012-JUN-27, at:
  7. Asawin Suebsaeng, "The Best (or Worst) Lines From Scalia's Angry Dissent on the Supreme Court's Defense of Marriage Act Ruling," Mother Jones, 2013-JUN-26, at:
  8. Steven Nelson, "Gay Marriage Will Go Nationwide in 10 Years, Lawrence v. Texas Attorney Predicts," US News and World Report, 2013-JUN-26, at:

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Copyright © 2013 to 2015 by Ontario Consultants on Religious Tolerance 
Originally written: 2013-JUL-15
Latest update: 2015-JAN-09
Author: B.A. Robinson

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