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Scalia and The War In the Supreme Court Over Gay Marriage

By       Message Eric Zuesse     Permalink
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opednews.com Headlined to H3 3/31/13

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Adam Liptak delivered, in The New York Times, on March 29th, one of the finest analyses that has ever been provided in a news report concerning the inner workings of the U.S. Supreme Court, and he presented Antonin Scalia as the Court's bulldog against gay marriage.

 

Headlining " Who Wanted to Take the Case on Gay Marriage? Ask Scalia ," Liptak concluded that the only member of that Court who has been unhesitatingly wanting the Court to rule on the constitutionality of gay marriage is Scalia, and that the reason is that Scalia thinks that the Court is only going to be becoming more liberal, not more conservative, from now on.

 

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Liptak explains why the Court's other four Republicans -- Thomas, Alito, Roberts, and Kennedy -- might not have wanted to render a decision "on the merits" in this important case (Hollingsworth v. Perry), but Liptak concludes that Antonin Scalia definitely did want to rule "on the merits," or on the constitutionality of gay marriage; and here is Liptak's key passage on that:

 

"The aha moment came on Tuesday. After Justice Anthony M. Kennedy suggested that the court should dismiss the case, Justice Antonin Scalia tipped his hand. "It's too late for that now, isn't it?' he said, a note of glee in his voice. "We have crossed that river,' he said."

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Liptak then goes on: "That was a signal that it was a conservative grant," which had been made back in December to hear this case. Liptak explains that in order to hear a case, at least four justices must vote to hear it, but that in order to win a case, at least five justices must vote in favor of a given verdict concerning it. Liptak also explains why he thinks that the other at-least-three justices who joined with Scalia in December to hear this case were his fellow Republicans, and not the Court's liberals: "That theory was demolished in the courtroom [on Tuesday] as one liberal justice after another sought to find a way to avoid" ruling on the merits. Consequently, the prospects for a ruling that gay-marriage bans are unconstitutional would appear to be slim.

 

Liptak also proves, by analyzing Kennedy's statements during oral arguments on Tuesday, that at least Kennedy doesn't want to rule on the merits on this case. In fact, the "aha moment" was the very moment when Scalia basically told Kennedy that there is going to be a ruling on the merits, regardless of whether Kennedy wants to or not. Scalia was essentially telling Kennedy there, in effect: "Either you will be joining with us in a verdict that the Equal Protection Clause does not extend to gay marriage, or else you will be joining with the Democrats to kick that can farther down the road and have it become lost in the coming liberal jungle."

 

Scalia, in other words, is betting that, when forced to do so, Kennedy will join his side in (and will probably even write [so as to give Kennedy even more motive to join him in]) the Court's verdict, saying that the last decision in the case, by Judge Vaughn Walker of the U.S. District Court for the Northern District of California, was in error when it concluded that the Equal Protection Clause applies to or includes any right of homosexuals to marry each other.

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Beyond the analysis by Liptak, I shall go further and predict that Scalia will be disappointed; and here is the reason why:

 

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Investigative historian Eric Zuesse is the author, most recently, of  They're Not Even Close: The Democratic vs. Republican Economic Records, 1910-2010,  and of  CHRIST'S VENTRILOQUISTS: The Event that (more...)
 

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