By Tom Watts
Yesterday, in the DOMA oral argument, Justice Scalia appeared to make a logical mistake, which created phantom marriages acknowledged by law but never created by law. He was picking up a hypothetical asked twice by Chief Justice Roberts, but he did not appear to have thought it through. As originally posed, the question was as follows:
“[Y]ou agree that Congress could go the other way, right? Congress could pass a new law today that says, We will give Federal benefits. When we say ‘marriage’ in Federal law, we mean committed same-sex couples as well…. Or do you think that they couldn’t do that?” He then clarified, “[Y]ou don’t think it would raise a federalism problem either, do you?”
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