“It takes real cheek,” Scalia wrote, “for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
Scalia has a record of making accurate predictions along these lines. In 2003, the court issued the landmark gay rights case Lawrence v. Texas, also written by Kennedy, that made it illegal for states to criminalize homosexual conduct. In a bristling dissent read from the bench that day, Scalia predicted lawyers for a generation would be using language in Lawrence to advance arguments that gay marriage must be permitted.
He was right then and he’s likely right now. Kennedy’s opinion, despite his last-sentence disavowal, is shot through with language gay rights lawyers will read as powerful arguments that states violate the U.S. Constitution when they ban gay marriage. An example: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.”