It is sloppy – full of personal emotion and rushed conclusions, but little legal or factual basis. United States Supreme Court Justice Anthony Kennedy’s majority opinion in U.S. v. Windsor, the Defense of Marriage Act (DOMA) case, feels like it was written in haste and with little thought put into it. I can only describe it as “confused.” How can that be possible, when these are the best legal minds in the country and the Justices held on to this case until the last day of the Court’s term? It was argued back in April. And why would Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan join him in such a poor decision with no concurring opinion?
Let us examine the opinion, while we keep these questions in mind. I will deal with the “standing” issue in a separate article, but suffice it to say here to underscore the main point that Justice Kennedy seems to recognize that the dissent has a much more sound argument on the issue. “The Court’s jurisdictional holding, it must be underscored, does not mean the arguments for dismissing this dispute on prudential grounds lack substance,” he wrote. But he doesn’t deal with the dissent’s arguments, he just hopes that the Executive branch won’t do this too much. “The integrity of the political process would be at risk if difficult constitutional issues were simply referred to the Court as a routine exercise.” Then why open the door at all?
Justice Scalia, in dissent, reaches the most likely conclusion. What motivates the majority to move forward with the case is “just a desire to place th[e] Court at the center of the Nation’s life.”
Now to the merits of the case. Justice Kennedy starts with the smoke and mirrors of federalism. He quotes cases saying that the “‘regulation of domestic relations’ is ‘an area that has long been regarded as virtually exclusive province of the States,’ and that ‘the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.’” But Justice Kennedy fails to acknowledge that DOMA does not seek to regulate marriage at the state level, but only define it for federal laws.
Imagine that tomorrow a state decides to redefine the meaning of a year, so that for them a year will be composed of 10 months, not 12. Well, it would be prudent for the federal government to define what they mean when they talk about a year in relation to federal laws, so that one state does not distort the laws that have already been passed, which make reference to the traditional definition of a year.
Justice Kennedy’s federalism argument also ignores “the Federal Government’s long history of making pronouncements regarding marriage for example – for example, conditioning Utah’s entry into the Union upon its prohibition of polygamy.” But it is all for nothing, because we soon find that even after discussing the argument, the majority will not rely on federalism after all. Here’s Scalia:
[T]he opinion starts with seven full pages about the traditional power of States to define domestic relations – initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution …”
After the long discussion of the federalism it won’t rely on, Justice Kennedy turns, out of nowhere, to talk about discrimination. The majority then announces it is considering “whether the resulting injury and indignity is a deprivation of an essential part of liberty protected by the Fifth Amendment” (due process). In its considerations, however, the majority uses Equal Protection cases (which are not about the Fifth Amendment but the Fourteenth). There is no standard of review, no discussion of “suspect class,” although the jargon is certainly there to give us the impression of legitimacy. It hints at “substantive due process,” but seeing the insurmountable challenge before it, it must stop short of that again.
As Justice Samuel Alito pointed out in his separate dissent, “It is well established that any ‘substantive’ component to the Due Process Clause protects only ‘those fundamental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition.’” Not even the most activist judge can make the case that same-sex “marriage” is “deeply rooted” in our nation’s history.
So the Court must go for emotion, “DOMA seeks to injure,” Justice Kennedy writes. Yes, just like that, the majority declares its true basis for ruling DOMA unconstitutional. It gives us a “substantive due process-like” reasoning that perfectly sets the stage to invalidate all laws “discriminating” against same-sex couples by defining marriage as a man and a woman, including at the state level. Simply put, those who voted for DOMA are bigots.
If you are surprised, you are not alone. Chief Justice John Roberts was also appalled at the majority’s claim. He wrote: “At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.”
The most ghastly thing about the majority’s charge is that there is no evidence for it and what the Court offers as “evidence” is laughable. They say things like the title is clear proof of the intent to harm homosexuals. Really? “Defense of Marriage Act” says it is targeting homosexuals? How about polygamists? Are they not targeted, too?
Scalia writes: “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 does the opposite – affirmatively concealing from the reader the arguments that exist in justification.”
And there are many reasonable justifications for DOMA: uniformity, avoiding choice of law issues, ensuring the original intent of prior legislation, promoting family stability, etc. These are not born out of hate for homosexuals, and everyone can see that – except for five Justices of the Supreme Court who said:
[T]he supporters of this Act acted with malice – with the “purpose” … “to disparage and to injure” same-sex couples … to “demean” … to “impose inequality” … to “impose … a stigma” … to deny people “equal dignity” … to brand gay people as “unworthy” … and to “humiliat[e]” their children …
With this decision, the Court has declared itself the arbiter of the hearts of legislators; the bottom line is that it would be very difficult, after these broad, unfounded categorizations, to say that any state’s law protecting marriage as one man and one woman was not born out of “animus” towards homosexuals.
Scalia concluded that, “To hurl such accusations so casually demeans this institution.” Meaning the Supreme Court. And he is absolutely right. The Supreme Court takes with this opinion yet another major blow to its credibility. “It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race,” Scalia said.
Based on the sentiment, the majority holds DOMA “unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.” And they pinky swear that it is just a narrow ruling. Even the Chief Justice wrote a separate dissent to point out that the majority said at the end that its “opinion and its holding are confined to those lawful marriages.”
The Court simply must believe that we are foolish. Thankfully, Justice Scalia wrote down what we wish we could say:
I have heard such “bald, unreasoned disclaimer[s]” before. Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578. Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23 – with an accompanying citation of Lawrence. It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here – when what has preceded that assurance is a 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. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with. (Emphasis mine)
The Courts judgment is not even confined to the legal precedent it sets, as it will no doubt be used as great leverage in public policy debates. The court has effectively tipped the scales immensely in favor of same-sex “marriage,” and has effectively branded those who hold a Biblical view of marriage as being akin to the KKK. Scalia also identified this, calling it “a judicial distortion of our society’s debate over marriage – a debate that can seem in need of our clumsy ‘help’ only to a member of this institution.” He concludes, “The Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat.”
Although we are not quite ready to concede defeat, there is no question that a great injustice was committed on our nation by the very institution we most closely associate with justice. God’s model for marriage – one man and one woman for life – is ultimately the only true model, and the battle to defend it will certainly continue, but the Court has clearly chosen its side.