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   Justice Scalia is boxed in by Prop 8 ruling
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Last EditedRP  Aug 09, 2010 11:36am
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News DateMonday, August 9, 2010 05:00:00 PM UTC0:0
DescriptionWalker’s opinion is well-reasoned and carefully constructed, and sends a clear warning shot to other states which have banned homosexual marriage. States are now on notice that a reviewing court will not only demand evidence of a rational basis for prohibiting gay marriage, but that the arguments advanced by California were insufficient to demonstrate a rational basis.

As California now knows, advancing a rational basis won’t be easy for any state- something that Justice Scalia noted in his dissenting opinion in Lawrence v. Texas (a case which held that anti-sodomy statutes are unconstitutional when applied to the acts of consenting adults in private quarters):

Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct… what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry. This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court. Many will hope that, as the Court comfortingly assures us, this is so.

Judge Walker’s opinion brilliantly cited Justice Scalia’s statement above, all but daring Justice Scalia to overturn Scalia’s own reasoning in Lawrence v. Texas. Of course, that won’t be easy for Justice Scalia.
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