The Supreme Court avoided a ruling on California's Proposition 8 case Wednesday, which cleared the way for gay marriage to resume in California, making it the 13th state (plus the District of Columbia) where same-sex marriage is legal.
Exactly 10 years ago today, the Supreme Court similarly made a landmark decision for gay couples – striking down the sodomy law in Texas by a vote of 6-3 in the landmark case Lawrence v. Texas. That case affirmed the right of gay couples to have consensual sex.
In his dissent of that ruling, Justice Antonin Scalia angrily warned that if the court was willing to strike down sodomy laws, other state laws on moral choices could soon be lifted, among them gay marriage. 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.
He further argued:
If moral disapprobation of homosexual conduct is 'no legitimate state interest' for purposes of proscribing that conduct ... what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising '[t]he liberty protected by the Constitution?'
On Wednesday, the Court did not grant marriage equality to all states, as many gay advocates hoped it would. But it did get one step closer to the slippery slope Scalia so feared. And the conservative justice appeared just as angry in his dissent of the Court's ruling Wednesday that the Defense of Marriage Act was unconstitutional.
"What... are we doing here?" he wrote in his dissent, calling the decision a "jaw-dropping ... assertion of judicial supremacy over the people's Representatives in Congress and the Executive."