This conclusion flows from the Windsor decision of the United States Supreme Court this past summer, which held that the federal government cannot refuse to recognize a valid same-sex marriage. United States v. Windsor, ___ U.S. ___, 133 S. Ct. 2675 (2013). And now it is just as Justice Scalia predicted1 – the lower courts are applying the Supreme Court’s decision,2 as they must, and the question is presented whether a state can do what the federal government cannot – i.e., discriminate against same-sex couples … simply because the majority of the voters don’t like homosexuality (or at least didn’t in 2004). Under the Constitution of the United States, the answer is no, as follows.3
Jason Mazzone is also not amused.
Whatever the merits of Judge Robert J. Shelby’s ruling today that Utah’s same-sex marriage ban violates the Fourteenth Amendment, his opinion would have appeared considerably more judicial had he resisted the urge to give Justice Scalia the finger. ….
Inasmuch as Justice Scalia has never “recommended” that lower federal courts strike down state marriage laws, Judge Shelby’s “agreement” with Scalia is nothing of the kind. Call me old fashioned, but it seems to me that if you can’t fairly represent the opinions of Supreme Court justices, you have little business being on a district court.