It's not a perfect match with Justice Roger Taney's infamous decision, as this wonderful Philadelphia Inquirer article points out, but it's too damn close for comfort from the man that the current US President cites as an "ideal" Associate Justice of the Supreme Court:

Still, some of the similarities between Scalia's and Taney's views on liberty are striking.

Scalia wrote extensively about the history of morality laws, and laws against gay sex in particular, and asserted that they were "deeply rooted" in national history and tradition. Taney discussed Americans' historical disdain for African Americans and the long line of laws denying them rights. He said the founders believed that blacks "had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit."

Scalia cited Americans' reluctance to accept gays as business partners, schoolteachers or "boarders in their homes" as the basis for laws denying them rights that others have.

Taney said it was "too clear for dispute" that blacks weren't included in the Declaration of Independence's assertion that "all men are created equal."

Kermit Roosevelt, a University of Pennsylvania law professor, said that when the court refuses to update notions of fundamental liberty, the spirit of the Constitution's promises goes unfulfilled. Roosevelt gave an 1873 case, Bradwell v. Illinois, as an example.

"In this case, an Illinois lawyer sued so she could become a member of the state bar, which didn't accept women," he said. The 14th Amendment, which provides equal protection under the laws, had been enacted five years earlier. Still, the court upheld the ban on female lawyers because the founders had provided a woman with "no legal existence" beyond her husband. The "paramount destiny and mission" of women was to be wives and mothers, the court said.

"Today, this would be a no-brainer violation of the 14th Amendment," Roosevelt said. "That's the way in which the change in societal attitudes should inform our interpretation of the Constitution."