Another court has used U.S. Supreme Court Justice Antonin Scalia’s words against him to rule in favor of same-sex marriage.


The U.S. Court of Appeals for the 4th Circuit ruled 2-1 on Monday that the Constitution guarantees the right to marry regardless of sexual orientation.

“We recognize that same-sex marriage makes some people deeply uncomfortable,” wrote Circuit Judge Henry F. Floyd. “However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws. Civil marriage is one of the cornerstones of our way of life.”

The appeals court cited Scalia’s dissent in the 2003 Lawrence v. Texas case, where he argued that striking down an anti-sodomy law would raise questions about laws based on moral choices, and argued that event ancient laws were not immune to attack.

“’Preserving the traditional institution of marriage’ is just a kinder way of describing the State’s moral disapproval of same-sex couples,” Floyd argued, quoting Scalia. “Preserving the historical and traditional status quo is therefore not a compelling interest that justifies the Virginia Marriage Laws.”

Federal judges in Idaho, Kentucky, Michigan, Ohio, Oklahoma, and Texas have cited Scalia’s dissents in Lawrence or the Defense of Marriage Act case to show why same-sex marriage bans were unconstitutional.

His Supreme Court colleague, Ruth Bader Ginsburg, also used Scalia’s words against him last month in her blistering dissent in the Hobby Lobby case.