The Texas ban on same-sex marriage is unconstitutional according to a federal judge who delivered his ruling in San Antonio on Wednesday. The Austin American-Statesman reports that U.S. Judge Orlando Garcia issued an injunction barring the state from enforcing the law. He also stayed the injunction pending appeal in the 5th U.S. Circuit Court of Appeals.
Garcia joined the ranks of federal judges who have recently handed down similar rulings in Utah, Oklahoma, and Virginia.
He is making headlines, though, because he found justification for his decision in the most unlikely of places. A Huffington Post story describes how Garcia used the words of conservative Supreme Court Justice Antonin Scalia to undermine the state’s central arguments.
Texas argued in the case before Garcia that the ability of opposite-sex couples to procreate, as well as “tradition” was enough justification to deny marriage rights to same-sex couples. Garcia didn’t have to look far to find an argument to counter that. He looked to a U.S. Supreme Court case from 2003, Lawrence v. Texas, which struck down the state’s anti-sodomy law.
Scalia wrote a dissenting opinion in that case. In his opinion he laid out an argument that the court was wrong to strike down laws based on moral choices. The opinion seems prescient now, as Scalia pointed out that overturning a law based on morality would call into question laws banning same-sex marriage.
"What justification could there possibly be for denying the benefits of marriage to homosexual couples exercising 'the liberty protected by the Constitution'? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry,” Scalia wrote in the 2003 opinion.
As for Texas’ claim that tradition was also a sufficient reason to deny marriage rights to gays Garcia also pointed to Scalia who argued that tradition alone could not form a rational basis for law. In the 2003 case Scalia said, "the traditional institution of marriage" is "just a kinder way of describing the State’s moral disapproval of same-sex couples."
Justice Scalia has issued other predictions and warnings regarding same-sex marriage. Those predictions are also proving accurate.
Following last year’s U.S. v. Windsor case where the Supreme Court struck down parts of the federal Defense of Marriage Act, The Washington Post quoted Scalia’s dissenting opinion.
“It takes real cheek 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,” Scalia wrote.
He added that the majority in the Windsor case armed every challenger to a state law restricting marriage to its traditional definition. Such suits are a “second . . . shoe to be dropped later,” he argued.
It seems he was right.