The Prophetic Warnings of Justice Antonin Scalia
America suffered a great loss this past Saturday with the sudden death of Supreme Court Justice Antonin Scalia. But, to apply words from the eleventh chapter of the Book of Hebrews, Justice Scalia “being dead still speaks.” Some of his dissenting opinions were not just scathingly surgical (while criticized by some as “intemperate” and worse), they were prophetic.
In 2013, writing for the ABA Journal, Debra Cassens Weiss stated, “Scalia predicts the future, once again, in gay-marriage dissent.” She was pointing back to Scalia’s dissenting opinion in the 2003 Lawrence v. Texas ruling, which infamously found a constitutional right to sodomy, as well as to his dissenting opinion in the 2013 United States v. Windsor, which overturned the Defense of Marriage Act (DOMA).
Scalia’s words have been quoted many times since 2003 as an accurate prophetic warning of the inevitable (but much derided) slippery slope. He wrote, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity … every single one of these laws is called into question by today’s decision.”
Although we can question whether some of the behaviors listed by Scalia should be the focus of state law, there is no denying the accuracy of his warning. It was not for nothing that gay activists immediately celebrated the Lawrence v. Texas decision as the clear path to same-sex “marriage.” As reported by The New York Times June 26, 2003,
Gay men and lesbians poured into the streets today to celebrate a Supreme Court decision striking down or strictly limiting the country’s last remaining sodomy laws in 13 states.
From Florida to Alaska, thousands of revelers vowed to push for more legal rights, including same-sex marriages.
As Scalia rightly asked, based on the court’s ruling “what justification could there possibly be for denying the benefits of marriage to homosexual couples?” The answer to his rhetorical question is now self-evident: If there is a constitutional right to sodomy, a patently absurd claim, then homosexuals can claim same-sex “marriage” as a “right.”
Scalia, then, was not overstating things when he claimed that the Court “has largely signed on to the so-called homosexual agenda.” We could even say today that the Court did not just “sign on” to that agenda in the aftermath of Lawrence v. Texas. Rather, it signed, sealed and delivered that agenda.
Ten years later, in 2013, when the Supreme Court overturned DOMA in the United States v. Windsor ruling, Scalia’s dissenting opinion was so prescient that supporters of same-sex “marriage” have used his words to say, “You see! Redefining marriage is inevitable.”
Critics of Scalia have even claimed that it was his dissenting opinion that paved the way for a flood of rulings in favor of redefining marriage, since he allegedly expanded the implications of the majority decision. Instead, I believe it would be better to say that his logical predictions were right on target.
In his dissent of the Windsor ruling, Scalia wrote, “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
He continued, “As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, 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.”
How easy, indeed. Last year, when the Court redefined marriage in the Obergefell v. Hodges decision, Scalia, issued yet another prophetic warning, as did the other dissenting justices. Scalia first rebuked the Court’s overreach, writing, “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”
He continued, “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
It is that very freedom that is being challenged on a weekly basis in our courts, places of business, schools and beyond. Scalia’s death, then, is not just a loss for the Supreme Court and our nation. It is a loss for the cause of freedom.
May God raise up to the Court men and women who will build on Justice Scalia’s legacy rather than work against it, men and women who will heed Scalia’s warnings rather than prove those warnings true.