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Did Justice Scalia Just Telegraph His Decision On DOMA?

by Jean Ann Esselink on June 24, 2013

in DOMA,Jean Ann Esselink,Legal Issues,News

Post image for Did Justice Scalia Just Telegraph His Decision On DOMA?

In a speech entitled “Mullahs of the West: Judges as Moral Arbiters,” Ulta-Conservative Justice Antonin Scalia told an audience of judges and lawyers that courts have no “scientifically demonstrable right answer” to moral issues like abortion and same-sex marriage. He decried the “judge moralist” and said communities have the responsibility to decide what is morally acceptable, not the courts.

Justice Scalia made his speech to the North Carolina Bar Association Friday night, at one point repeating a provocative comment he made during oral arguments in the case of Edith Windsor V United States, which could soon decide the fate of the Defense of Marriage Act.

“When did it become unconstitutional to exclude homosexual couples from marriage?” Justice Scalia mused. But he made no attempt to answer his own question.

Court watchers speculate, that while Justice Scalia did not directly address the DOMA and Proposition 8 Cases awaiting a decision by the Court, his remarks Friday signal his preference for same-sex marriage laws to be decided on by states, and not by the High Court. Justice Scalia said Constitutional Law is threatened by the growing pressure to have judges fill the role of moral arbiter. Quipped Scalia, “We’re not qualified.”

Justice Scalia’s photo is from his Facebook Page.

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{ 8 comments }

MiddleGrounds June 24, 2013 at 5:05 pm

“When did it become unconstitutional to exclude homosexual couples from marriage?” Justice Scalia mused. But he made no attempt to answer his own question. <<< When it violates the 14th amendment and people are unnecessarily discriminated by a law!

jkb200 June 24, 2013 at 8:44 pm

when? when the words "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness" were penned.

joanofarc007 June 24, 2013 at 8:56 pm

It always HAS been constitutional for gays to marry. It falls under "Life, Liberty and the Pursuit of Happiness." There's no "unless you're gay" in there. Does it "hurt" anyone? The only people hurt are those who choose to stick their nose into another citizen's business and whine about something that doesn't affect them.

The SCOTUS is about the LAW. It's not about "morals." Moralists have argued: "If we allow gays to marry, what's next? Will we allow people to marry potted plants?"

No, jackass – because marriage, under the law, is a legal contract. You may enter into legal contracts only with people of sound mind and legal age. You cannot enter into a legal agreement with a potted plant NOR can you enter into a legal agreement with a minor. A CHURCH can and will marry you to a potted plant. In the case of Warren Jeffs – you can find a CHURCH who will marry you to a 12-year-old. But the LAW said no – and the law spoke LOUDLY in the case of Warren Jeffs.

I can't believe this is even a question. One group of citizens doesn't have the right to take away the legal rights of others with a simple majority vote. That's unAmerican. You should be ashamed.

So man up and grow a pair, Scalia.

sdfrenchie June 24, 2013 at 11:51 pm

I knew it. He's fearing for his life if he votes to remove DOMA and allow equal marriage as well. The threats have been made and Scalia's a conservative and a coward. How is it possible that a Supreme Court Judge can be so conservative as to deny people their rights as described in the Constitution? Scalia knows very well that if it left up to the states, the red states will absolutely decide against marriage equality.

As far as Prop 8, if that is sent back to the lower courts in California, I believe it will be abolished and marriage equality will resume as it was prior to Prop. 8. It's beyond me that a state as liberal as California ever allowed that to even be voted on. Now we're living like southerners because of the conservatives who thought it was okay to interfere with our rights. Regardless, the gay flag still flies high above Hillcrest here in San Diego and it is a relief to see it there in the most conservative city in California. This is where Prop. 8 began.

So, let's hope Scalia will be the most unbending of the judges and the rest will be brave and do the right thing. Scalia and anyone else who is strongly conservative doesn't belong on the bench in the Supreme Court of what used to be and by our strength will return to being a Democracy. He needs to retire.

eyehop June 24, 2013 at 11:53 pm

Moralist wordplay. The constitution itself is moralist, and as the law of the land, it supersedes lesser 'moral' notions, and yeah, there is a cast of judgement that comes with. That's your job, Scalia. Abortion and gay marriage are rights issues, and were looking right at you.

jeffbstrong June 25, 2013 at 8:32 am

These are the words of a coward. The same could be said for any issues concerning wrongs done to people. When did it become unconstitutional to exclude woman from the vote or blacks from marriage to whites or working children as soon as they can be put in the work force..etc. Coward! Many social norms were and still are just wrong! We need brave men and woman in this position NOT cowards!

tomchicago01 June 25, 2013 at 9:27 am

It sounds to me like the supercilious parting shot from the losing team. If he really believes he is not qualified to be a moral arbiter, why is he so often found moralizing?

ay_eshu June 27, 2013 at 2:27 am

Justice Kennedy speaks of a 'separate status' enjoyed by men and women who are legally married in accordance with the historic tradition which began with the marriage of Adam and Eve. He wants to give equal status for regular and gay marriages. Marriage is the only institution that brings together a man and a woman for life, providing any child who comes from their union with the secure foundation of a mother and a father. By striking down DOMA and by giving equal status for gay marriage, the Supreme Court has uprooted the social tradition of Americans planted by the Founding Fathers. As Justice Scala has correctly said,"It is one thing for a slciety to elect change; it is another for a court of law to impose change.'

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