So when Scalia writes that: he is not just "predicting the future"; he is shaping it. The majority opinion in that case deliberately did not reach the issue of whether the state laws were constitutional. The case was decided on grounds that did not require the result. However, because Scalia views his role in writing dissents as that of the Gawker blogger in chief, he inadvertently provided state judges with a strong rationale and really strong persuasive authority to get to that result. After all, when a Supreme Court justice says that the logic of a decision mandates a certain result in the case before them, who are they to say that he's wrong. He's the highest authority on the US Constitution, not them.
State judges who would have been inclined to let the legislature take the ball on this one all of a sudden had a Supreme Court justice saying they had a constitutional obligation to strike down the laws.
Justice Scalia predicted in
Lawrence in 2003 that we would eventually see federal judicial imposition of same-sex marriage. Most conservatives predicted this even before 2003. Liberals usually denied it as paranoid, but we now see that these denials were either naive or dishonest. After
Lawrence (which also contained a "disclaimer" that Scalia dismissed) there was
not any attack on state marriage laws by federal judges. Scalia also predicted in his
Lawrence there are no grounds on which polygamy can be banned anymore but there has been no rush to constitutionalize polygamy, yet. So did they just not read Scalia's dissent? Or not care? Or maybe something else is driving these decisions? Indeed: this is all a matter of fashion.
In fact, the laughable and overwrought language in the
Windsor decision (characteristic of Kennedy) plus the elite legal culture, which Scalia discusses in his
Romer dissent, is the reason for the result in lower courts. Not anything Justice Scalia wrote. He was warning about the implications of the decision, which are obvious even if he had not written a dissent, as you acknowledge.
Justice Scalia does not believe that they have a constitutional
obligation to invalidate laws that are constitutional, and he believes that these laws are constitutional. What he said in his Windsor dissent is that while there are thinks there are grounds to distinguish between Sec. 3 of DOMA and state marriage laws (there obviously are) he does not think that "
this Court" will make such a distinction. Lower federal courts can and have made such distinctions, even post-
Windsor, as Justice Roberts noted in
his dissent. So they are by no means bound by Scalia's dissent, nor was there a lack of other authorities if they had wanted to reach a different result. They wanted to impose same-sex marriage on the country, against the will of many states, and that's it.
I also love that Justice Scalia is suddenly the most persuasive and important Supreme Court Justice! Would that this were true more often.
