WOW! Scalia’s Money Dissenting Quote From The DOMA Case


“But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con- demn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment [written by SCJ Anthony Kennedy], any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “dis- parage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homo- sexual.

“All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. 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.”

It’s important to recognize that the two cases decided today did not establish a federal right to gay marriage. The DOMA case merely held that states, not the federal government, get to define what marriage is – and if a state defines marriage so as to include gay people then the feds have to recognize a gay couple as legally married in that state (or another in which their marriage is recognized).

Scalia thinks that’s stupid, because he says the federal government has the right to define marriage however it wants for the purposes of federal law. He has a point, but that back-and-forth is debatable. Essentially the question comes down to who gets to be the primary arbiter of what a marriage is, and Scalia’s proposition would open things up for the feds to pre-empt the states on that score. Given who’s in charge of the federal government right now that doesn’t bode all that well for the defenders of traditional marriage.

But our friend Michelle Ward Ghetti, who’s a law professor visiting at Georgetown right now, offers this explanation…

Section 3 of the federal Defense of Marriage Act provides: “Definition of marriage: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

Today the Court ruled that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under FEDERAL LAW as married opposite-sex couples.

It did NOT, however, hold that the entire Act, including Sec. 2, is unconstitutional. Sec. 2 provides: “Powers reserved to the states: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.” This means that – FOR NOW – every state is allowed to decide what marriage means in that state and NOT to recognize a same-sex marriage formed in another state.

I say “for now” because, given what I read as undertones of the majority opinion, I don’t think this will stand. Kennedy will be the deciding vote and, although I see the basis of his decision being federalism, the language he used, I believe, suggests he is willing to go further than that and adopt a broader equal protection ruling if Sec. 2 is challenged. I am quite sure a challenge will be filed THIS YEAR and will make it to the Supreme Court in about 2-3 years.

So we’ll see what happens in the next round. It does look like things are moving in the direction of gay marriage being legal everywhere.

But for today, despite the fireworks, this wasn’t a big change in gay marriage.

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