Civil Discourse Now

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Justin Antonin Scalia becomes odd authority for citation in Federal cases that overturn State provisions against marriage equality.

   Justice Antonin Scalia perhaps has the highest public profile of any sitting Justice of the United States Supreme Court. Although educated at Georgetown and Harvard, as a member of the faculty at the University of Chicago School of Law, he became identified with that law school's cant toward what has been deemed a more conservative view of the law. Judge Richard Posner, of the United States Court of Appeals for the Seventh Circuit, also was faculty at UC and has led the move toward an economic view of construction and interpretation of the Constitution, the States' constitutions, and the law.

   Justice Scalia has a quirky sense of humor. He also is often quite blunt about his views on specific topics, cases before the Court and the opinions written by his fellow Justices.

   A recent odd development in our Nation's case law has followed the United States Supreme Court decision in United States v. Windsor, 570 U.S. 12, 133 S.Ct. 2675 (2013), in which the United States Supreme Court struck down the Defense of Marriage Act ("DOMA"). Justice Scalia's dissent in that case has been cited as authority for overturning restrictions on marriage equality by courts in United States District Courts in Oklahoma, Virginia, and Utah.

   Citation to United States Supreme Court dissents as authority to take a different tack on a matter is not a new development. Dissents often have laid a foundation for later Supreme Court decisions for reversal on the original position. (E.g., the dissent of Justice Stevens in Bowers v. Hardwick, 478 U.S. 186 (1986) and majority opinion in Lawrence v. Texas, 539 U.S. 558 (2003).) Such authority of dissents usually arises years after a dissent in which a view quite different from that of the Court is advanced. Also, citations to such a dissent are for the reasons set forth in the dissent.

   There is no mistake when one characterizes Justice Scalia's dissent in the DOMA case as critical of the holding of the Court there. Justice Scalia lambastes the majority. Primarily he argues the Court lacked standing to consider the case because there was no case in controversy. Plaintiff won at the District Court, he wrote, and the United States Court of Appeals lacked jurisdiction to consider the case on its merits. Generally, there must be an actual case in controversy for an appellate court to exercise jurisdiction over a case. Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-42, 57 S.Ct. 461, 464 (1937). His criticism on this point covers over 11 pages of the original slip opinion.

   However, on one page of the slip opinion---page 23---in a format those familiar with computer word processing programs are familiar, Justice Scalia sets out paragraphs of the majority opinion, crosses out key phrases, and inserts phrases so as to indicate the structure of an argument one could advance, presumably with success, against State limitations on marriage equality. From what I can tell, in context, Justice Scalia's exemplar paragraphs are meant to express sarcasm, a quality for which his opinions are known. The United States District Courts in question have taken that language, and the straw man argument reasoning Justice Scalia poses, to overturn the various State measures in question.

   I favor marriage equality. Justice Scalia raises legitimate concerns about the manner in which the DOMA case came before the Court. A passage from a satirical portion of a dissent in a case recently decided should not form the basis for case law with a straight face.

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