How Scalia Helped Legalize Gay Marriage in Pennsylvania

In his decision this week striking down Pennsylvania’s ban on
gay marriage in
Whitewood v. Wolf, U.S. District Judge John E. Jones
III quoted extensively from the jurisprudence of Supreme Court
Justice Anthony Kennedy. That came as no surprise, of course, since
Kennedy has written all of the Court’s biggest decisions in favor
of gay rights, from Lawrence
v. Texas (2003), which invalidated that state’s ban on
homosexual conduct, to United
States v. Windsor (2013), which stuck down part of the
1996 Defense of Marriage Act.

But Judge Jones also relied on a more surprising
ally to reach his conclusion. That ally was Justice Antonin Scalia,
the same conservative jurist who once railed
against his Supreme Court colleagues for “sign[ing] on to the
so-called homosexual agenda.” How did Scalia help Jones? It’s
relatively simple. When it came time for Jones to perform a crucial
piece of legal analysis on the constitutionality of the
Pennsylvania gay marriage ban, he found Scalia to be a more useful
guide than Kennedy. That sealed the deal and allowed Jones to
legalize same-sex unions in the Keystone State. Here’s how these
strange judicial bedfellows came together.

Last term in U.S. v. Windsor, the Supreme Court was
tasked with deciding whether Section 3 of the Defense of Marriage
Act (DOMA), which had forbidden the federal government from
recognizing same-sex unions that were permitted under state law,
violated the equal protection component of the Fifth Amendment.
Kennedy’s majority opinion held that it did.

In dissent, Scalia lambasted Kennedy for sidestepping the
Court’s precedents governing equal protection cases. “The opinion,”
Scalia wrote in Windsor, “does not resolve and indeed does
not even mention what had been the central question in this
litigation: whether, under the Equal Protection Clause, laws
restricting marriage to a man and a woman are reviewed for more
than mere rationality.”

Scalia had a point. Typically, when the Equal Protection Clause
of the 14th Amendment (or the equal protection component of the
Fifth Amendment) is at issue, the courts first decide what degree
of judicial review is appropriate for resolving the case. There are
three basic settings. The most lenient is rational-basis review
(Scalia’s “mere rationality”), where the courts extend broad
deference to the government. The next level is called intermediate
scrutiny, or sometimes heightened scrutiny. Here the government
must shoulder most of the burden of proof and demonstrate that its
statute is substantially related to an important government
objective. Finally, there is strict scrutiny, the most exacting
standard, which requires the government to prove both that the law
serves a compelling government interest and that it is the least
restrictive means for achieving that interest.

That may sound like a bunch of lawyers splitting hairs; but the
real-world impact cannot be overstated. Rational-basis review

stacks the deck overwhelmingly in favor of the government. (“It
is enough,” the Supreme Court
held in one rational-basis case, “that it might be thought that
the particular legislative measure was a rational way” for
lawmakers to proceed. Emphasis on might be thought.)
Intermediate scrutiny, by contrast, reverses the odds and forces
lawmakers to mount a persuasive and verifiable defense of their
contested statutes. In practical terms, rational-basis review
allows a gay marriage ban to remain in force; intermediate scrutiny
requires the ban to fall.

Yet when Kennedy wrote his Windsor opinion invalidating
part of DOMA, he did not clearly adopt any of one of those
differing levels of review. Instead, he spent the bulk of the
opinion emphasizing the fact that DOMA singled out one class of
Americans for abuse. At the same time, however, he also included
certain language taken from rational-basis cases. But as Scalia
complained in dissent, “the Court certainly does not apply
anything that resembles that deferential framework.” In other
words, Scalia accused Kennedy of quietly deploying intermediate
scrutiny without bothering to justify why that heightened approach
was appropriate under the Court’s precedents.

Which brings us back to Judge Jones and his ruling this week in
Pennsylvania. Like every other federal judge weighing a state ban
on gay marriage, Jones was duty-bound to follow relevant Supreme
Court jurisprudence. But as noted above, the most directly
applicable case, Kennedy’s ruling on DOMA, offers no clear guidance
on the appropriate level of judicial review a lower court judge
should apply. That put Jones in a legal pickle. Should he defer to
the Pennsylvania ban or not?

To answer that question, Jones turned to Scalia. “As Justice
Scalia cogently remarked in his dissent,” Jones wrote, “‘if
[Windsor] is meant to be an equal-protection opinion, it is a
confusing one.'” Then, lest anyone miss the point, Jones proceeded
to adopt Scalia’s reading of Windsor: “Its discussion is
manifestly not representative of deferential review.” As Scalia saw
it, Windsor was an intermediate scrutiny case in all but
name. Jones happily signed on to that interpretation and applied a
fatal dose of heightened scrutiny to Pennsylvania’s gay marriage
ban.