Has Scalia Inadvertently Paved the Way for Marriage Equality?

Are federal trial judges trolling a Justice of the Supreme Court? As New York Times legal blogger Jesse Wegman has observed, federal judges appear to be “hav[ing] a little fun” with Justice Antonin Scalia in their review of state laws that prohibit same-sex couples from marrying. Highlighting passages from the dissent that Justice Scalia authored in Windsor v. United States, the June 2013 decision that declared key parts of the federal Defense of Marriage Act unconstitutional, judges in Utah, Ohio, Kentucky and Virginia have been “rubbing it in” by suggesting that Justice Scalia himself has mapped the constitutional path to marriage equality. Wegman pictures an outraged “I told you so” from Justice Scalia if the Court does eventually rule that the Constitution prohibits discrimination against same-sex couples in civil marriage laws.

Perhaps the Justice has made himself a target for Schadenfreude in the public square, given the mocking tone that he sometimes adopts in his opinions. But lower federal courts? This spectacle of federal judges trolling a member of the High Court calls for some attention to the practice of judicial dissent: why Supreme Court Justices write dissenting opinions, and how judges on lower federal courts are influenced by them.

There is a proud tradition on the Supreme Court of writing what one might call dissents for the ages. In cases dealing with weighty issues, a minority—sometimes a lone Justice—may conclude that the Court has set itself against the great tide of history. Writing not to convince colleagues but to mark out moral territory, these visionary dissents forge a new vernacular—a vocabulary of words and concepts that lay the foundation for a future jurisprudence that the Court can take up when it comes to realize its error. One thinks of Justice John Harlan in 1896, decrying the doctrine of separate but equal in his lone dissent in Plessy v. Ferguson, or Justice Louis Brandeis in 1927, joined by Justice Oliver Wendell Holmes, planting the seeds of a robust free speech doctrine in Whitney v. California that would only take root in the full Court decades later. This is the rare poetry of the prophet, the judicial voice in the wilderness that eventually becomes received wisdom.

Often, however, dissenting Justices have a more immediate goal. Supreme Court rulings cannot help but leave much undecided, requiring lower federal courts to explore the implications of a decision in case-by-case adjudication. A dissent can frame, define, even redirect the controlling opinion of a majority as lower courts work out the details of a doctrine over time. Justice William Brennan was a master of this skill. Noted for his ability to broker winning coalitions among his colleagues on the Court, Justice Brennan could also mitigate defeat by crafting dissenting opinions that would shape the later interpretation of doctrine in his preferred direction, placing his gloss on the opinion of the majority even as he identified his points of disagreement in dissent.

Justice Scalia’s dissenting opinions are best known for their broadside attacks, particularly in the Court’s gay rights opinions, but they have also operated in the deft mode of Justice Brennan, seeking to define and limit the impact of rulings that he disapproves. In this mode, his dissenting influence in the field of gay rights has been greatest in Lawrence v. Texas.

Lawrence was the landmark 2003 case in which the Supreme Court declared that adults could not be criminalized for private acts of same-sex intimacy, repudiating a notorious decision from 17 years earlier that had expressed open hostility to the dignity of gay people. A key question in Lawrence was whether sexual privacy constituted a “fundamental right,” the Court’s most robust category of individual liberty. The majority opinion spoke broadly in describing the principles underlying its decision, but it did not use the term “fundamental right” in so many words, and Justice Scalia’s dissenting opinion capitalized upon that omission to frame the actual holding of the case in narrow terms.

The maneuver proved effective. Many lower federal courts would go on to cite Justice Scalia’s dissent as the authoritative statement on Lawrence’s meaning. For ten years, in constitutional cases encompassing such matters as a ban on adoption by gay people in Florida, a challenge to the military Don’t Ask, Don’t Tell policy in Massachusetts, and a prohibition on same-sex couples marrying in Hawai’i, Justice Scalia succeeded in minimizing the impact of Lawrence.

With the Supreme Court’s decision in Windsor, the tide has shifted. Since that opinion was handed down, no lower court has relied upon Justice Scalia’s dissent in Lawrence to deny a claim of right. Indeed, only one court has even cited Justice Scalia’s restrictive language—a federal trial court hearing a challenge to a Utah law that targeted people of faith who enter polygamous living arrangements for religious reasons—and that court did so in a somewhat apologetic mode, explaining that it was hewing to the old Lawrence spin only because a leftover appellate ruling from the controlling federal circuit compelled it to do so.

Instead, it is Justice Scalia’s dissent in Windsor that is now getting all the airtime in the lower federal courts. “The real rationale” of Windsor, the Justice wrote in that case, “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.” Invoking the Lord for strength and fortitude, Justice Scalia encouraged lower courts to cabin the holding of Windsor in future marriage litigation with a flourish of ostentatious futility, lamenting that the future direction of the Court’s jurisprudence on the subject is “beyond mistaking.” Indeed, the Justice went so far as to edit portions of the majority opinion into an imagined marriage equality ruling. It is hard to blame lower federal courts for making use of such material, particularly following ten years in which Justice Scalia’s Lawrence dissent exercised such outsize influence.

The true gravamen of Justice Scalia’s opinion in Windsor, however, comes in his closing words, where he clearly seeks to speak for the ages:

“We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. 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. I dissent.”

History will decide whether this is poetry, prophecy, or the parting salvo of a view whose time has passed. I take nothing for granted. Progress on civil rights has never been inevitable, nor does the imperative to recognize equal humanity and dignity move only in one direction. Still, the surprising freedom that some courts have shown in recasting Justice Scalia’s dissent in the register of poetic justice does seem to indicate that a transformation of some kind is underway.