For yesterday’s Supreme Court ruling striking down the federal Defense of Marriage Act, three of the four dissenting justices wrote their own opinions. But of the three, Justice Scalia’s dissent has gotten by far the most attention.
Liberal online commentators claim it’s “intemperate,” “sassy,” “angry,” and “dripping with contempt and sarcasm.” With all this focus on how emotional his dissent was, one would think Scalia had nothing rational to say.
And while the opinion did contain some snark — Scalia wrote that the ruling was filled with “legalistic argle-bargle” and “nonspecific hand-waving” — none of that should discount its reasonable and logical arguments.
First, Scalia disagreed with the majority that the Court had any “power to decide this case” in the first place since there was no “case or controversy” to be resolved. The government, New York state, and the plaintiff, Edith Windsor, had already “agree[d] that the court below got it right; and they agreed in the court below that the court below that one got it right as well.”
In fact, Windsor had “won below, and so cured her injury”. Scalia then quoted a former justice saying, “absent a ‘real, earnest and vital controversy between individuals,’ we have neither any work nor any power” to rule on a given case. “In the more than two centuries that this Court has existed as an institution,” Scalia wrote, “we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer.”
Consequently, argued Scalia, there was no reason this case should have even come before the Court. In addressing the argument made by the majority — that the Court had a duty, as per the “clear dictate of the separation-of-powers principle,” from allowing an “Act of Congress … to conflict with the Constitution” — Scalia said that such a mindset of judicial tyranny would have been “unrecognizable” to the Founding Fathers.
But once Scalia got to the merits of the case itself, he had much more to say. Right off the bat, he called the majority opinion’s justifications “rootless and shifting” for paying needless lip-service to arguments of federalism at first to only then cite equal-protection cases. For Scalia, the two came into conflict — a conflict left unaddressed by the majority.
Scalia’s main contention concerned the majority’s holding that the purpose of DOMA was based solely on a “desire to harm” gay couples. He wrote that “there are many perfectly valid — indeed, downright boring — justifying rationales for this legislation,” including the uncertainty and confusion that DOMA avoided when married couples crossed state lines. But instead, the majority portrayed the president and the Congress who passed this legislation two decades ago as “unhinged members of a wild-eyed lynch mob” whose only motivation was malice.
“[T]o 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 condemn, demean, or humiliate other constitutions,” asserted Scalia. He further objected: “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.”
His final argument centered on the fact that, despite the majority’s “limiting assurance,” the logic of the ruling can only lead one to conclude that gay marriage is a constitutional right, especially after “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.” And using such language as “demeaning” and “degrading” will render the majority’s assurance “meaningless.” By cleverly switching certain phrases in the Court’s ruling (the new ones are shown in italics), he then showed how easily and inevitably the logic followed:
DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.
In closing, he claimed that “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. We owed both of them better.”
I predict Scalia will be vindicated within two years. Gay marriage advocates in states that don’t recognize gay marriages will inevitably sue their states, using much of the language in the majority opinion and relying on much of its logic, including the Equal Protection Clause. The left-wing commentariat is simply not giving Scalia enough credit.
But when have liberals ever done that?