The Sept. 19 Scotus blog reports U.S. Supreme Court Justice Antonin Scalia said there were now no legal barriers to allowing same-sex marriage.

In Lawrence vs. Texas (2003), the court ruled Texas could not have an anti-sodomy law that applied only to same-sex couples because it violates the due process clause of the 14th Amendment. Scalia contends that if sodomy is no longer illegal there are no barriers to same-sex marriage.

This means no federal or state legislatures could pass “laws refusing to recognize homosexual marriage” because same-sex marriage is the “logical conclusion” of the court’s decision to grant constitutional protection to “personal decisions relating to “marriage,” procreation, contraception, family relationships, child rearing, and education” and that “persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do” because private sexual conduct “can be but one element in a personal bond that is more enduring.”

Another victory is the recent federal Second Circuit Court’s decision to declare federal Defense of Marriage Act unconstitutional because it denies legally married same-sex couples the same benefits granted to opposite-sex married couples. The court was the 10th federal court to strike down DOMA.

This case involves a New York woman who had to pay $363,053 in federal estate taxes on the property she inherited when her same-sex spouse of 44 years died because DOMA denied her the benefit that opposite-sex widows receive.

The Supreme Court has not yet scheduled a time for considering the same-sex marriage cases but it appears likely to examine them soon, perhaps next month.

Tom Waddell


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