Scalia's gay nightmare arrives: How an Ohio ruling is driving haters crazy

With gay marriage bans "tumbling down" across the U.S., expert tells Salon SCOTUS could tackle issue again in 2015

By Josh Eidelson
April 16, 2014 10:30PM (UTC)
main article image
Antonin Scalia (AP/Manuel Balce Ceneta)

Antonin Scalia’s dire warnings and frenzied nightmares about gay marriage, from more than a decade ago, are coming true.

In a ferocious 2003 dissent defending Texas’ right to ban “sodomy,” the right-wing justice  warned that “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 ‘[t]he liberty protected by the constitution?”


Now, after five of his colleagues overturned the federal Defense of Marriage Act, Scalia issued another warning:

As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe. By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority 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 injure’ the ‘personhood and dignity’ of same-sex couples…

Scalia’s nightmare – moving from legalized gay sex, to federal recognition of some states’ legalized gay marriages, to the fall of gay marriage bans elsewhere – came another step closer this week, as federal Judge Timothy Black ruled that the state of Ohio must recognize same-sex couples who’ve gotten married in other states. To discuss the past year’s cascade of such decisions, the place of courts and marriage in the LGBT movement, and where the marriage fight goes next, Salon called up attorney Susan Sommer of Lambda Legal, co-counsel in the Ohio case. A condensed version of our conversation follows.

Attorney General Mike DeWine said, “This is a hotly debated issue, and we believe it's better to allow every state to make its decision." Why do you disagree?


Because the point when states can no longer put to a popular vote people’s rights is when the Constitution steps in to protect the minority. And that’s exactly what this is about …

A decade ago, majority of [Ohio] voters said, “We’re going to vote to discriminate against same-sex couples.” And Ohio does not get to make a decision to strip the minority of really important rights. So that’s what this judge well understood, and that’s what now 10 other decisions in federal courts around the country have also said in similar kinds of cases. We’re seeing laws like this just go tumbling down around the country.

Are you surprised by what has been happening at the state level, and the pace at which it’s been happening, since the [2013] Supreme Court rulings on marriage equality?


Well, it’s certainly living up to our hopes and dreams …

I definitely feel like something has caught on, that [in] the Windsor decision especially, the Supreme Court really spoke to the nation. And judges … from all parts of the country … [including] in traditionally conservative states -- are recognizing that it is unconstitutional to hurt same-sex couples and their families.


And it’s really … just taken hold in the country.

Justice Scalia’s dissents – which have been quoted sometimes in these decisions – his dissents in the marriage cases, and prior to that in the sodomy case – was he prescient about where the law would have to go given the logic of the majority opinions?

I think in many ways he was. You know, he’s absolutely right: Once you recognize that moral disapproval in and of itself is not a legitimate basis for depriving liberties or equality, there’s no other justification left for these type of laws that single out gay and lesbian Americans for ill treatment …


States around the country have been given all these opportunities to come up with any kind of legitimate, credible argument for why same-sex couples should not have the same marriage rights as others. And over and over again now, in a steady drumbeat of decisions, judges are rejecting those arguments … These state governments can come up with nothing.

In a state like Ohio, how does now having gay couples with out-of-state marriages that are recognized by Ohio impact the political or cultural or legal struggles around gay rights in that state?

We are waiting for the court to determine the extent to which his decision is going to be stayed. But in any event, already the reality is in Ohio there are married same-sex couples whose marriages are being respected, because the federal government is respecting them … there’s private employers and others who are respecting their marriages as well. And certainly the sky hasn’t fallen …


The Henry decision talked about the harm to the children of these families, the way that the state has sought to deny their families the same dignity, the way that the laws are stigmatizing these families ... [Now] these couples can hold their heads that much higher in Ohio. And I think that there are conversations going around all across the country … all across the state of Ohio as a result of a case like this …

There in court were these three women couples ... in each couple there is a pregnant woman because you know part of the issue here is getting birth certificates … One of the couples brought their little boy … So the state sees those stories as well, and that’s another thing that these kinds of decisions and lawsuits are doing.

As marriage equality has advanced, we’ve seen more of an emphasis on what some on the right like Ross Douthat have framed as a right to dissent, among them the argument being made that a photographer should have a First Amendment right not to photograph a same-sex wedding if they disapprove of it. What do you make of those arguments?

Well, sure you have a right … not to engage in business transactions if they pose some kind of personal problem for you. And what you do is: You don’t go into that business.


But once you put yourself in the public marketplace, and you hold yourself out as, you know, a business that will serve the public, you have to play by the same rules as everyone else. And we may all have different kinds of views and preferences, but we make a basic pact that when it comes to providing a public accommodation, we’re not going to say, “No room at this inn for you.” And I think that’s completely fair, that if somebody … is uncomfortable with having to serve one segment of the population in a business open to all, then find another business.

Should protections against anti-LGBT discrimination in public accommodations like the ones in the Civil Rights Act be federal law?


Particularly a decade ago, in the lead-up to the 2004 election, there’s been debate about the role of judicial progress in winning advances for a social movement. Some people argue that Brown v. Board showed the way that winning at the Supreme Court can advance a larger movement. Some people argue that Roe v. Wade is an example of blowback from a Supreme Court ruling. What is your assessment of what those historical examples suggest, and of how we are seeing the interplay between the courts and the LGBT movement more recently?


I think we’re seeing a really steady and accelerating progress in the courts for LGBT people … not just the Supreme Court being like the lone court, you know, reaching down and issuing some dictat. [Rather,] the Supreme Court, when it comes to the gay rights cases it’s had in the last, you know, almost two decades now, has been not leading the way but acknowledging where the country is … When sodomy laws were struck down, at that point in time only like 13 states still had those kinds of prohibitions on the books. The court was not in any way, I think, getting out ahead of evolving notions of personal liberty and equality.

And I think the same is true of the Windsor decision … The federal government executive branch refused to defend the constitutionality of the [DOMA] law … We’ve seen … state legislatures enacting marriage rights for same-sex couples … New Jersey and New Mexico after Windsor ruling that marriage rights are the obligation of the state under state constitutional guarantees. And then now we’ve seen … 11 court decisions in a row coming out of federal courts essentially saying the same thing. So I really don’t think the courts are forcing the issue on the American people …

We’re seeing polling data -- my god -- that’s showing just a very rapid and marked rate of public acceptance for … gay rights, and particularly on this marriage issue that we’re talking about …

Our country, you know, trends towards equality, and with respect to this movement I think we’re seeing it.


You know, in terms of Brown v. Board of Education, it has certainly been a long and hard road. Roe v. Wade, that whole debate, I mean there was a book written by Linda Greenhouse and Reva Siegel that gives a real counterpoint … I’m not sure at all that Roe v. Wade was [a case where] the court acted too soon …

Relative to issues like employment discrimination, do you think that LGBT advocates and activists have put too much emphasis or too many resources into marriage equality over the past several years?

No, I don’t …

There’s certainly a lot that Lambda Legal does, there’s a lot that I personally do [as] lawyer there that is not marriage. And you know, you guys -- media -- are particularly interested in the marriage issue. I mean, it gets a lot of coverage, but that isn’t to say there isn’t a lot of other work going on …

A lot of the marriage issues I’ve worked on actually have arisen in the employment context, where employers are not providing the same health insurance coverage …

It’s not just the kind of major LGBT civil rights groups that are working on the marriage issue … We’re seeing private attorneys and other kinds of groups jumping in as well … We’re not the only ones devoting resources …

Which isn’t to say that it isn’t incredibly important to double down and make progress on all these other fronts. You know, that is critical. We can’t neglect these other issues.

Where are we going to see the next victories [for] marriage equality?

There are very few states left where there isn’t a case filed. And we’re certainly hoping that the momentum continues … Federal court in West Virginia, we think a decision could come soon.

Now we’re also seeing some of these federal challenges are working their way up to the circuits … from Utah, the 10th Circuit, another one will be argued [in] another week or so …

Believe me, I work on a lot of other stuff … Right now, though, I think marriage is leading the way. And you know, it’s certainly having a good impact on these other issues as well. As these discussions are happening -- as America is getting to know lesbian and gay people because of these kinds of conversations, these cases in the public eye -- I think it works to the benefit of those who aren’t, you know, in a couple, or those who have other very pressing needs …

How long is it going to be before the Supreme Court tackles marriage equality in some form again?

It’s up to them … This is certainly a … very important issue that has an impact on lots of parts of the country, so certainly there’s an expectation that the court would see the issue as worthy of the court’s attention …

One possibility really is in 2015. But who knows?

Josh Eidelson

MORE FROM Josh EidelsonFOLLOW josheidelsonLIKE Josh Eidelson