As judges in courts around the country have ruled against gay marriage bans this year, they have made a point of quoting Supreme Court Justice Antonin Scalia’s famously vitriolic dissent in United States v Windsor, the 2013 case that struck down the Defense Against Marriage Act (DOMA). Journalists have described the repeat Scalia references as “trolling” — as if the district court judges were baiting Scalia and his fans in a winking way by taking up the Catholic Supreme Court Justice’s bitter warning that the logic of Windsor would be used to legalize gay marriage and therefore implicating him in the decisions that will come to do just that.
“How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status,” Scalia wrote about the Windsor decision. “No one should be fooled; it is just a matter of listening and waiting for the other shoe.”
In her dissent today from the majority opinion handed down in the Hobby Lobby religious freedom case, Justice Ruth Bader Ginsburg seems to have joined the crowd trolling Scalia’s Windsor decision. She wrote that the logic of the Hobby Lobby opinion, which allows “closely held corporations” to skirt laws that offend their faith, will open the door for corporations to suddenly find all kinds of rules and regulations religiously offensive.
The Court’s determination that RFRA [the Religious Freedom Restoration Act] extends to for-profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA claims will proliferate, for the Court’s expansive notion of corporate personhood — combined with its other errors in construing RFRA — invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith.
Compare that to this line in an opinion handed down June 6th by U.S. district Judge Barbara Crabb. She was trolling Scalia on her way to striking down Wisconsin’s ban on gay marriage: “[A]s noted by Justice Scalia in his Windsor dissent, it is difficult to cabin the Court’s reasoning to DOMA only.”
Crabb argued that the logic of the DOMA decision — if extended –compels judges to rule against same-sex marriage bans.
How many corporations doing business in the Roberts-Court United States are now suddenly going to find Jesus or Allah? As Ginsburg quoting Scalia might have put it: “It’s just a matter of listening and waiting for the other shoe.”
Ginsburg’s footnote 19, incidentally, makes a pretty strong case that the high court majority has wandered into a legal wilderness in support of corporate rights: