Same-sex marriage cases have experienced an extreme rollercoaster over the past few years, ultimately culminating in the historic decision that gave same-sex couples a fundamental right to marriage. Looking back over the history of gay marriage cases, now is a good time to reflect on the lessons learned from Justice Scalia.
Consider a 2013 case in Utah, where a federal district judge struck down Utah's gay marriage ban on due process and equal protection grounds. While the case mapped fairly closely with the opinion overturning California's Proposition 8, the surprise came with a bit of legal judo performed by U.S. District Court Judge Robert Shelby in Utah. Shelby declared that the U.S. Supreme Court's own Justice Antonin Scalia had inspired him to strike down the state's law.
Parade of Horribles = Gay Pride Parade
Readers familiar with Scalia know that he is prone to a number of overblown rhetorical devices in some of his most famous opinions and speeches. While he is a Justice of the Supreme Court and -- like a Renaissance-era Italian duke -- can typically allow himself these indulgences, legal professionals should not.
Look no further than how Justice Scalia's own use of facetious logic worked in the 2013 Utah gay marriage case. In his opinion striking down Utah's gay marriage law, U.S. District Court Judge Robert J. Shelby quoted Scalia's dissent in Windsor:
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today's opinion. As I have said, the real rationale of today's opinion ... 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.
The intended effect? Scalia denouncing the loosey-goosey legal analysis Justice Kennedy employed in writing for the majority to reach its result. However, throwing up your hands in legal form and sardonically declaring "and then why not gay marriage everywhere, huh?!" isn't quite a reductio ad absurdum when that is the policy goal of gay marriage proponents.
To his credit, Scalia has been making this proclamation with regard to same-sex marriage as far back as Lawrence v. Texas. In his dissent in Lawrence, the conservative Justice announced a parade of horribles would befall overturning Bowers v. Hardwick: bigamy, incest, bestiality, and even gay marriage. We're certain he will appreciate the irony or prescience of these statements if Judge Shelby's case finds its way before the federal High Court.
Writing/Speaking Tips for Practitioners
Since most legal practitioners do not have the luxury of lifetime tenure and loads of conservative speaking engagements, it does not behoove any attorney to write like Justice Scalia. Instead of turning to hyperbole or sarcasm, try instead to focus on:
- Being concise. You may not even have time during a hearing or oral arguments to wax poetic. Don't muddle your legal arguments with unnecessary rhetorical flourishes.
- Being clear. While you might spend some time presenting the opposing arguments and discrediting them, this should not hijack the clarity of your own points. Make sure your affirmative case is clear instead of spending time on snark.
- Being professional. There is a huge temptation for any practicing attorney to be catty or dismissive when presented with arguments that sound absurd or ridiculous. Be a professional. Keep your poker face on in your writing and in court, and don't let yourself slip into writing like a mean girl.
And on the off chance you do become a Supreme Court Justice, remember that your words -- as sarcastic or hyperbolic as they can be -- are frozen practically forever in case law. So choose them wisely.
Editor's Note, June 30, 2015: This post was first published in December, 2013. It has since been updated.
- Utah Judge 'Agrees with Scalia,' Strikes Down Gay Marriage Ban (Slate)
- Justice Elena Kagan Made Friends, Showed Sarcastic Side in 1st Year (FindLaw's Strategist)
- Famous Friends: Profiles of Ginsburg and Scalia (FindLaw's U.S. Supreme Court Blog)
- Scalia Says SCOTUS Shouldn't 'Invent New Minorities' (FindLaw's U.S. Supreme Court Blog)