Justice Antonin Scalia, who relishes his role as a self-appointed judicial defender of bigotry, waved a white flag dissenting from one recent gay marriage decision. "In sum,” he said, “that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the 'personhood and dignity' which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that 'personhood and dignity' in the first place. 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."
Only a day apart, Scalia opined that the states could deny federal protection to prevent voter suppression while voting to deny states the right to legislate marriage equality. He reminds us of when one of President Nixon’s appointees to the Supreme Court was deemed “mediocre.” Nebraska Senator Roman Hruska famously said the mediocre “are entitled to a little representation, aren't they?”
Scalia would suggest that even the bigots “are entitled to a little representation, aren't they?”
Even Scalia recognizes these rulings were admonitory. States have been warned. Legislators can either do what the constitution requires or the courts will do it for them. The decisions were victories for state’s rights but ultimately, the high court sent a warning shot across their bow. If the states don’t do it, the federal courts will have no choice but to guarantee homosexuals equal protection under the law.
In the case determining the Defense of Marriage Act (DOMA) to be nothing but a defense of bigotry, United States v. Windsor, the majority decided, “DOMA is unconstitutional as a deprivation of the equal liberty of persons that is protected by the Fifth Amendment.” Weighing Leviticus against the Constitutional guarantee of equality, five of the nine justices said the latter, “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.”
Using that criterion, civil contracts are as unacceptable as the status quo. Civil contracts are to marriage equality what “separate but equal” was to the battle for the rights of African Americans. “Whites only” drinking fountains are no different than “heterosexual only” weddings. Churches can make their choices but the constitution doesn’t leave anyone a second-class citizen.
The case overturning the California ban on gay marriage sent the strongest signal of what lies ahead for politicians who read their Bible but not our Constitution. Justice Roberts said the proponents of California’s Proposition 8 had suffered only a “generalized grievance” when the ballot initiative they sponsored was struck down.
Those words, “generalized grievance,” relegated to the waste bin the arguments heard ad infinitum from opponents of equality. Those like state senator Leslie Nutting of Cheyenne, who claim the rights of same-sex couples somehow violates “the sanctity of marriage,” or WyWatch and state representative Lynn Hutchings’ claims that gay marriage threatens heterosexual marriage, that marriage is about the ability to reproduce, or the arguments that gay couples shouldn’t raise children…and other unsubstantiated claims…the Chief Justice of the Supreme Court said those arguments were all “generalized” grievances, not giving adherents the right to come into a court to challenge people seeking equal protection under the law.
Note to Nutting and Hutchings: Chief Justice Roberts wrote, in another case striking down a school integration program, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." Ergo, the way to stop discrimination on the basis of sexual orientation is to stop discriminating on the basis of sexual discrimination.
The thud you heard when Justice Roberts finished speaking was indeed the other shoe dropping.
Wyoming legislators can choose between prejudice and the Constitution. Don’t hold your breath. Time and resources used to work for equal rights in the Equality State would be better spent taking the case to the federal court.
The time has come and even Justice Scalia knows it.