In his opinion invalidating Indiana and Wisconsin’s bans on same-sex marriage, Judge Posner couldn’t help himself, and jabbed Justice Scalia. Specifically, he suggests that Scalia thinks Baker v. Nelson would still be good law.
Civil Service Commission, 755 F.2d 266, 272 (2d Cir. 1985). Baker was decided in 1972—42 years ago and the dark ages so far as litigation over discrimination against homosexuals is concerned. Subsequent decisions such as Romer v. Evans, 517 U.S. 620, 634–36 (1996); Lawrence v. Texas, 539 U.S. 558, 577– 79 (2003), and United States v. Windsor are distinguishable from the present two cases but make clear that Baker is no longer authoritative. At least we think they’re distinguishable. But Justice Scalia, in a dissenting opinion in Lawrence, 539 U.S. at 586, joined by Chief Justice Rehnquist and Justice Thomas, thought not. He wrote that “principle and logic” would require the Court, given its decision in Lawrence, to hold that there is a constitutional right to same-sex marriage. Id. at 605.
Scalia’s opinion in Lawrence doesn’t cite Baker. Here is the relevant passage:
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.
This is an unpersuasive citation. Scalia most certainly didn’t say the Court would be “required” to so hold–though many (gleeful) district judges have cited him for that proposition.
What is most remarkable about this citation is that Posner totally brushes it aside. After mentioning Scalia’s opinion–which doesn’t even allude to Baker–Posner doesn’t even bother replying to it, which was why he mentioned it in the first place. I got the gist that he thought Scalia so horribly wrong, that merely stating his position was sufficient to establish its fallaciousness.