Justice Scalia Should Recuse Himself From the Prop 8 and DOMA Cases


There is no legal requirement that a member of the Supreme Court of the United States (SCOTUS) recuse themselves from hearing and voting on a case for which they've had prior participation or for which they have a previously disclosed bias. We may think of recusal as common sense, but to the Court, things just don’t work that way. When SCOTUS hears oral arguments on Tuesday and Wednesday of this week regarding the Defense of Marriage Act (DOMA) and California’s Prop 8, which bans same sex marriage, we already know how Justice Antonin Scalia will vote.

As a strict constitutionalist, Scalia will face a new dilemma though, one which only he can resolve by recusing himself from one or both. If he votes to uphold DOMA, a concept which he embraces with all the fervor a good Catholic jurist can muster, then he must vote to overturn Prop 8. The issue is state’s rights. DOMA asserts that the Federal government can dictate the kind of person you can marry. The tenth amendment to the Constitution states, "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." I have searched, and cannot find where the power to regulate marriage was delegated to the federal government. Nor could I find language which prohibits the states from addressing the issue for themselves.

So, from my point of view, that’s a slam dunk for the Court to overturn DOMA. If they do, then Prop 8 can stand on the strength of the Tenth Amendment. If, on the other hand, they uphold DOMA (which they may do), then they must overturn Prop 8. Overturning Prop 8 would be painful since it establishes state law which supports Scalia’s stated point of view. And if they uphold DOMA, Congress could overturn it themselves with new legislation, in which case California could present a new ballot initiative which might well go the other way.

Despite his unquestioned qualifications as a justice, the Catholic Church is Scalia’s moral compass. Heaven help us if he is ever called upon to hear a case involving pedophile priests; given how hard the church has worked to protect them, I worry that Justice Scalia might stand with his church on that topic as well.

But I digress. The Catholic Church has every right, no matter how wrong headed, to oppose gay marriage within their organization. What they don’t have is the right to impose such narrow minded opinions on our Constitution. Justice Scalia is dangerously close to crossing that line and he should recuse himself.