Justice Antonin Scalia dissented from the decision to strike down the Defense of Marriage Act, saying that the courts should not be deciding social policy.
On June 26, the Supreme Court of the United States issued two rulings related to same-sex “marriage” in what critics are suggesting could be the Roe v. Wade of marriage.
In a 5-4 decision (United States v, Windsor), the Supreme Court struck down the Defense of Marriage Act (DOMA), in force since the Clinton administration and which defined marriage as the union of one man and one woman, as unconstitutional. Justice Anthony Kennedy, often a swing vote between the usual left-right division on the bench, sided with Democratic-appointed liberals to find DOMA supposedly violated the Fifth Amendment guarantee of “equal liberty.”
Signed by President Bill Clinton in 1996, DOMA barred recognition of same-sex marriages for purposes related to more than 1000 federal laws such as entitlement benefits, tax filing, inheritance laws, and immigration. Now, no distinction is allowed to be made between heterosexual and homosexual married couples.
Justice Kennedy was joined by his colleagues Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Dissenting was Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas.
In another 5-4 decision (Hollingsworth v. Perry), the Supreme Court decided that pro-traditional marriage supporters of Proposition 8, a 2008 California ballot measure that outlawed same-sex “marriage” in the state, did not have standing to challenge a Circuit Court of Appeals decision overturning the ban. In doing so, the majority, led by Chief Justice John Roberts, avoided the question of whether states can prohibit same-sex “marriage” by addressing technical questions related to the case. Same-sex “marriages” will resume in California and the case has no bearing elsewhere in the country.
Obama administration Attorney General Eric Holder, whose department refused to defend the federal law, is “an enormous triumph” for gay rights. He said, “the Court’s ruling gives real meaning to the Constitution’s promise of equal protection to all members our society, regardless of sexual orientation,” and said the administration would work to immediately implement the decision. President Barack Obama, who never sought to overturn DOMA, said it “enshrined discrimination in law” and welcomed the decision.
Justice Kennedy said that the only reason legislators passed DOMA in the 1990s – it passed 85-14 in the Senate and 342-67 in the House of Representatives — was animus against homosexuals. Kennedy wrote in the majority decision: “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states.” In doing so, Kennedy said, the Congress passed a law that “violates the due process and equal protection principles applicable to the Federal Government.”
He did not consider that there could be moral arguments against homosexuality in general or homosexual marriage specifically. That seemed to be the basis of his decision that the law violated the “equal protection” he deemed should be granted to homosexuals who wish to marry. Edward Whelan, a lawyer and president of the Ethics and Public Policy Center, said that rather than engage in legal reasoning, Kennedy merely “smear(ed) supporters of DMA as mean-spirited bigots.”
Justice Scalia, in his dissent, said: “This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseases root: an exalted conception of the role of this institution in America.”
Albert Mohler, president of Southern Baptist Theological Seminary in Louisville, Kentucky, said the decisions “will go far redefining” marriage in America. He said the Court’s decisions means “it is only a matter of time” until same-sex “marriage” is permitted in all 50 states because it invites future challenges to marriage laws: “The Court’s decision in that future case, surely not long in our future, will be the new Roe V. Wade – a sweeping decision that would create a new ‘right’ that would mean the coast-to-coast legalization of same-sex ‘marriage’.”
Washington Post columnist Charles Krauthammer explains that the Court was offering inconsistent rationales its DOMA decision: in respecting federalism the majority said that the federal government has no role in defining marriage which is a state responsibility, yet it also invoked the equal protection argument which would imply that states do not have the right discriminate against homosexuals who wish to marry each other. Krauthammer said if the latter is not true, “why should equal protection apply only in states that recognize gay ‘marriage’?” Krauthammer said that Kennedy avoided nationalizing the same-sex “marriage” issue because, “I suspect he thought it would be a bridge too far.”
Scalia in the dissent said that striking down DOMA is only the beginning and using the logic employed by the majority must end with the full legalization of same-sex “marriage” across America.
