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Antonin Scalia’s gay marriage mystery

Antonin Scalia cast the deciding vote to bring same-sex marriage to California. And nobody noticed.

In Hollingsworth v. Perry, the Supreme Court held that the proponents of Proposition 8, which banned same-sex marriage in California, did not have standing to appeal a district court order invalidating the ban. As a result, the order went into effect, and California immediately started issuing marriage licenses to same-sex couples. The result was surprising to some lawyers. The district judge exceeded his authority: Outside of class action suits, judges generally don’t have the power to issue orders protecting people who aren’t parties to the case before them. But there wasn’t a word in the Court’s opinion limiting the remedy to the two couples before the Court.

The alliances were unusual. Chief Justice John Roberts wrote the 5-4 decision, joined by Scalia, Ruth Bader Ginsburg, Steven Breyer and Elena Kagan. The dissenters, Anthony Kennedy, Clarence Thomas, Samuel Alito and Sonya Sotomayor, thought the Court should decide the issue, though they surely would have split on the result.

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