Once again, Supreme Court Justice Antonin Scalia's blistering June 2013 dissent against overturning DOMA has been cited by a judge ruling against a state's gay marriage ban.
Late Thursday night, U.S. District Court Judge Arenda L. Wright Allen decided that Virginia's current law denies same-sex couples "their rights to due process and equal protection guaranteed under the Fourteenth Amendment of the United States Constitution."
As TPM points out, Wright Allen made a direct reference to Scalia's words in the process. Part of his June dissent highlighted the conflict United States v. Windsor presents for state and federal gay marriage laws.
"In Windsor, our Constitution was invoked to protect the individual rights of gay and lesbian citizens, and the propriety of such protection led to upholding state law against conflicting federal law. The propriety of invoking such protection remains compelling when faced with the task of evaluating the constitutionality of state laws. This propriety is described eloquently in a dissenting opinion authored by the Honorable Antonin Scalia:
As I have said, the real rationale of [the Windsor opinion] is that DOMA is motivated by "bare . . . desire to harm" couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
Scalia's June dissent went so far as to call the Supreme Court's decision to strike down DOMA "legalistic argle-bargle." He argued that same-sex marriage was a question best reserved for Congress and the states.
"We might have let the People decide," he said. "But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent."
This is not the first instance of Scalia's words from the federal DOMA case being applied at the state level. TPM noted in its Friday report that judges from Kentucky, Utah and Ohio have all pointed to some portion of that dissent in their various rulings.