California Forum

A different Scalia legacy: The gift of same-sex marriage

Much has been written about Supreme Court Justice Antonin Scalia since his sudden death last month, some of it praising him and some highly critical. Yet, nowhere has Scalia been praised for the role he played in creating a constitutional right for gays and lesbians to marry.

Crediting the notoriously gay-unfriendly Scalia for nationwide marriage equality may seem preposterous. If this sounds like hogwash or, to use Scalia-speak, “argle-bargle,” hear me out. It all has to do with “animus” and how Scalia became the very embodiment of the term.

Until 20 years ago, the Supreme Court was a deeply inhospitable place for gay rights advocates. Gays were simply assumed to fall outside the Constitution’s protections. After all, the Supreme Court had determined that noncitizen gay people could be banned from entering the country or deported as being “afflicted” with a “psychopathic personality.” And, as recently as the mid-1980s, the court determined that states were free to criminalize private, consensual, same-sex intimate conduct without violating the Constitution.

In 1996, the fate of gay rights cases began to change. In Romer v. Evans, a six-member majority struck down Colorado’s voter-enacted Amendment 2 as a violation of the Constitution’s Equal Protection Clause. The initiative repealed gay, lesbian and bisexual anti-discrimination protections and prohibited such protections in the future absent a statewide referendum.

In his powerful majority opinion in Romer, Justice Anthony Kennedy explained that gays and lesbians could not be singled out for disfavored treatment without some appropriate justification. Given its reach and breadth, Kennedy could find no legal basis for Amendment 2 other than animus – or hostility – toward gays and lesbians. And animus toward homosexuals was not a constitutionally acceptable justification.

Enter Scalia, who unwittingly became a force leading to the expansion of gay rights that culminated in June with nationwide marriage equality.

Scalia’s dissent was so angry and acerbic that he exemplified the very animus that led the court’s moderate conservatives – Justice Sandra Day O’Connor and Kennedy – to join the court’s liberals in striking down Colorado’s law.

While Scalia had ample grounds to criticize Kennedy’s opinion based on its arguably novel approach to constitutional law, Scalia went much further. He asserted that Coloradans could deprive their gay and lesbian neighbors of protection from discrimination for any reason whatsoever, including their dislike of the group. He belittled those in committed same-sex relationships as “long-time roommate(s),” and likened gay people to murderers and animal abusers.

Scalia’s words oozed animus toward gays and thus nudged Kennedy toward becoming the justice who has furthered gay and lesbian constitutional rights more than anyone in the court’s history. Kennedy has authored every major pro-gay decision since Romer.

By the time he penned his next gay-rights decision in 2003, Lawrence v. Texas, Kennedy was even bolder. He determined that laws criminalizing private, consensual, same-sex conduct “demeaned homosexual persons” and violated the “liberty” protections conferred by the Constitution’s Due Process Clause. In the majority opinion, Kennedy expressly overruled the prior Supreme Court decision that upheld such laws.

In his usual caustic tone, Scalia accused Kennedy of embracing “the homosexual agenda” and warned that Kennedy’s approach would inevitably lead to gays and lesbians having the right to marry. Yet, it was Scalia’s vitriol that helped place Kennedy on the path to becoming the court’s champion of gay and lesbian rights.

Scalia continued to raise the boogeyman of same-sex marriage in other cases. When the court struck down part of the Defense of Marriage Act and determined that federal marriage benefits had to be given to legally married same-sex couples in 2013, Scalia went so far as to rewrite Kennedy’s majority opinion to show how it would ultimately lead to nationwide same-sex marriage. In essence, Scalia was making the case for marriage equality at the same time he was condemning it.

Would there be nationwide marriage equality had Scalia been more restrained in his opposition? Possibly. A majority of Americans favored such a result by the time the Supreme Court ruled last year. On the other hand, had Kennedy not been pushed toward championing the constitutional rights of gays and lesbians by Scalia’s animus, marriage equality may well have taken longer to arrive.

Lawrence C. Levine is a law professor at the University of the Pacific, McGeorge School of Law.