Scalia Irony

Per Merriam-Webster, irony is “a situation that is strange or funny because things happen in a way that seems to be the opposite of what [was] expected.” There’s “hipster irony,” and,

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if some recent judicial opinions are any indication, there may be "Scalia irony" as well.

Federal judges in several states, including Idaho, Texas, Virginia, Utah, and Kentucky, have cited the words of Justice Scalia—specifically, Scalia’s dissents in Lawrence v. Texas and United States v. Windsor, the DOMA case—in striking down same sex marriage bans.

In the Idaho case, Latta v. Otter, the judge cited Scalia’s dissent in Lawrence to support her holding that Idaho’s same sex marriage ban is unconstitutional:

"But, as Plaintiffs argue, it is obvious that Idaho’s Marriage Laws purposefully discriminate on the basis of sexual orientation. Suggesting that the laws’ discriminatory effects are merely incidental, Defendants characterize them as efforts to preserve Idaho’s traditional civil marriage institution. “But ‘preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples.” Lawrence, 539 U.S. at 601 (Scalia, J., dissenting)."

2014 WL 1909999, at *21 (D. Idaho May 13, 2014).

And in Kitchen v. Herbert, out of Utah, the judge cited Scalia’s Windsor dissent:

"The Constitution’s protection of the individual rights of gay and lesbian citizens is equally dispositive whether this protection requires a court to respect a state law, as in Windsor, or strike down a state law, as the Plaintiffs ask the court to do here. In his dissenting opinion, the Honorable Antonin Scalia recognized that this result was the logical outcome of the Court’s ruling in Windsor:

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s 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.133 S. Ct. at 2709 (citations and internal quotation marks omitted).

The court agrees with Justice Scalia’s interpretation of Windsor and finds that the important federalism concerns at issue here are nevertheless insufficient to save a state-law prohibition that denies the Plaintiffs their rights to due process and equal protection under the law."

961 F. Supp. 2d 1181,1194 (D. Utah Dec. 30, 2013).

Isn't it Scalia ironic, don't you think? Happy Friday!