Antonin Scalia Defends Legal Writings Some View As Offensive, Anti-Gay

[happyslug]

10. Scalia would support a state that VOTES for gay marriage

On the other hand he will OPPOSE saying the Constitution requires states to recognize such marriages. Scalia is a strict constructionist of the Constitution and that includes Flexibility is left to the Legislative branches of Government. i.e. if a State passes a law recognizing Gay Marriages, the US Constitution does NOT forbid that. On the other hand if a State BANS Gay Marriages, the US Constitution, again, does not ban that. He wants to restrict "Equal Protection of the Laws" to protection it was aimed at, restrictions based on race.

Now, Scalia is also a Corporatist, I term I use to describe people who support Corporate America. In that regard Scalia is happy to extent "Equal Protection of the Laws" to Corporations, without seeing how that opens up "Equal Protection of the Laws" to other groups.

Now, one side of the "Gay Marriage" debate and the use of the "Equal Protection of the Laws" clause of the 14th amendment is that it requires the court to define HOW Equal must the laws be? Laws, by definition, group people into different groups, people who own property, people who do not, people who drive on the public roads, people who do not, people who can form a union, people who can not etc. The Equal Protection clause has NEVER been expanded to demand perfect equality for such perfection is impossible and inherently interferes with the legislative process. Thus how far does the "Equal Protection of the Laws" clause go? Scalia says not as far as who can marry, supporters of gay marriages says to include gay marriage.

On top of this you have the issue of Federal Supremacy. The Defense of Marriage Act puts a Federal Rule on Federal Benefits as to what is a marriage. It does NOT define marriage, leaving that up to the states, but forbids, for federal purposes only, for any federal agency to recognize gay marriages. Under the Supremacy Act of the US Constitution, such a law supersedes state law as to marriage. The Attack on the Defense of Marriage Act is that is handles Gay marriages different then straight marriages, and as such, it is claim, that difference in treatment violates the Federal Equal Protection Claim. The Defense is under the Federal Supremacy Clause the Federal Government has the RIGHT to recognize what marriages it wants to recognize.

In Scalia's mind the above is simple, the "Equal Protection of the Laws" does NOT extend to gay marriages and once he makes that decision, the Federal Government can recognize them or not, but that is up to Congress not the Courts and thus DOMA is constitutional under the Supremacy clause of the US Constitution.

On the other hand if a state wants to recognize Gay Marriages, the Federal Congress can not say NO, but Congress can still deny such married couple any FEDERAL marriage benefits. This sounds like a conflict but it is not, it is a deference to the legislative branches of government, something Scalia has always been big on, for the flexibility is in the legislative branch not the Judicial branch of government.