While proponents and opponents of same-sex marriage were either praising or lamenting the decision by the Supreme Court to overturn the Defense of Marriage vote in a 5-4 vote, Justice Antonin Scalia was scathing in his dissent. Led by Associate Justice Anthony Kennedy and Chief Justice John Roberts, the majority on the court did not, however rule on California’s equally controversial Proposition 8, having decided that the Court did not have jurisdiction. Both Kennedy and Roberts cited their own previous rulings to argue that DOMA had denied the Constitutional rights of same-sex couples and condemned their children to a life of “shame.”
Kennedy wrote that DOMA “imposes a disability” on people seeking federal recognition of their same-sex marriages approved at the state level. He added that the law, which was signed by President Bill Clinton, violates due process promised in a clause of the Fifth Amendment of the Constitution because it “singles out a class of persons deemed by a state entitled to recognition and protection to enhance their own liberty.”
With Kennedy’s ruling on DOMA, hundreds of employment, tax and other benefits previously denied under federal law will now be open to people legally married in the states that permit same-sex marriage. Also, the Defense Department will now extend benefits to the same-sex partners of military personnel, adding millions of dollars to overall federal expenditures.
Undaunted Justice Scalia, who is perhaps the most colorful orator on the bench, read his dissent out loud and clear as his colleagues listened mutely. The majority, said the Georgetown University trained jurist, in which he issued blistering remarks. Scalia said that Kennedy and cohorts were wrong for assuming the Supreme Court had jurisdiction over DOMA, let alone striking down the 1996 law on its merits. Scalia argued that the majority had shown with its opinion “an exalted notion of the role of this court in American democratic society.”
“Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides,” Scalia said. “Few public controversies will ever demonstrate so vividly the beauty of what our framers gave us, a gift the court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.”
In about five minutes, Scalia harrowed Kennedy’s opinion that holds that DOMA was unconstitutional based on the argument that the law’s supporters were motivated by the “bare desire to…harm” couples in same-sex marriages, to “demean” such couples, to brand homosexuals as “unworthy” and to “humiliate” their children.
“Bear in mind that the object of this terrible condemnation is not some benighted state legislature and governor, but our respected co-ordinate branches, the Congress and presidency of the United States,” Scalia said. “Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority’s opinion does the opposite, affirmatively concealing from the reader, never mentioning, the arguments that exist in justification.”
“I imagine that this is because it is harder to maintain the illusion of the act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them,” Scalia said.
Along this vein, Scalia predicted Kennedy’s opinion would actually worsen the tenor of the national debate over same-sex marriage by giving advocates of traditional marriage new ammunition to reject same-sex marriages at the state level. He also noted that the Supreme Court’s opinion did not go so far as to say anything on the question of whether same-sex marriages should be made lawful.
“It takes real cheek for today’s majority, as it is going out the door, to leave us with that comforting assurance, when what has preceded is a lengthy lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it,” Scalia said. “By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
The acerbic Scalia also warned that the opinion “will be a judicial distortion of our society’s debate over marriage” Citing the opposing outcome of same-sex marriage debates in North Carolina and Maryland, Scalia argued that the issue is best left to voters and not the courts. “In the majority’s telling, however, this story is black and white: hate your neighbor or come along with us,” he said. “The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s court can handle. Too bad.”
Chief Justice Roberts’ reading of his majority opinion in the California Proposition 8 case stuck to the jurisdictional questions surrounding whether private proponents of the measure could push the case into the federal courts if a state says so. Roberts said, basically, that they cannot. “States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse,” Roberts said. Scalia sided with Roberts’ side on the Proposition 8 opinion. The other justices, Antony Kennedy, Clarence Thomas, Samuel Alito, and Sonia Sotomayor did not speak from the bench about Proposition 8.