Scalia's dissent in the Windsor case could be his most influential opinion -- unintentionally

Many dissents seek to limit the majority opinion, suggesting ways that lower courts can work around it. Chief Justice John Roberts offered one such attempt in Windsor, suggesting that “the Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their ‘historic and essential authority to define the marital relation’ may continue to utilize the traditional definition of marriage.”

Scalia and his vivid language, however, grabbed the attention of press, public—and, it turned out, lower-court judges. With stunning swiftness, federal district judges have heard and decided challenges to state same-sex marriage bans, and by May 2014, a dozen judges had struck them down—first in Utah; then in rapid succession, Ohio, Illinois, Virginia, Kentucky, and even Texas. Judges young and old, male and female, gay and straight, Republican and Democrat, read Windsor and saw in it a logic that doomed state efforts to confine marriage to its “traditional” function as a union of man and woman. And some of what they read was not in the majority opinion but in Scalia’s dissent. In fact, about half of the opinions explicitly cited Scalia’s words.

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