Supreme Court Justice Anthony Kennedy became public enemy number one last week among conservatives after writing the majority opinion in U.S. v. Windsor which struck down Section 3 of the Defense of Marriage Act (DOMA). This section defined marriage as the legal union between one man and one woman.
Conservatives took offense against Kennedy for declaring DOMA “invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” There were also objections to Kennedy’s use of words such as “condemn,” “demean,” and “humiliate” in describing the purpose and effects of DOMA.
The most prominent of these conservatives was Kennedy’s Supreme Court colleague Justice Anton Scalia who wrote in his dissent:
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 condemn, demean, or humiliate other constitutions.
It is true that defending traditional marriage in of itself doesn’t necessarily “condemn, demean, or humiliate those who would prefer other arrangements.” However, this simply cannot be argued when it comes to the enactment of DOMA and its raison d’être. After all, when DOMA was being debated in Congress in 1996, the House Judiciary Committee proclaimed:
[C]ivil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”
Now one can argue that one can disapprove of homosexuality without disapproving of homosexuals. Hate the sin, but love the sinner. Unfortunately, given the emotion that homosexuality arouses in some people, such delineation is all but impossible. If DOMA was passed to express moral disapproval of homosexuality, is it really a stretch of the imagination to argue that DOMA is an expression of moral disapproval of homosexuals themselves?
Indeed, two years after the passage of DOMA, then Oklahoma GOP Senator Don Nickles (who sponsored the legislation in the Senate) opposed President Clinton’s nomination of James Hormel as Ambassador to Luxembourg because of his homosexuality. Nickles said of Hormel at the time:
“He has promoted a lifestyle and promoted it in a big way, in a way that is very offensive. One might have that lifestyle, but if one promotes it as acceptable behavior, I don’t think they should be a representative of this country. I think it’s immoral behavior and I think a lot of other behavior is immoral and shouldn’t be treated as acceptable behavior.”
There can be no doubt that Nickles used his position to “disparage,” “demean,” and “humiliate” Hormel solely on the basis of his sexual orientation. Absent his homosexuality, there must remain a question as to whether Nickles would have objected to Hormel’s nomination. If Nickles saw fit to “disparage,” “demean,” and “humiliate” Hormel then why wouldn’t he see fit to “disparage,” “demean,” and “humiliate” same-sex couples through his advocacy of DOMA?
It is easy to pillory Justice Kennedy for his opinion. Yet Kennedy would not have written this opinion if not for a dispute between a citizen and the IRS. Edith Windsor and Thea Spyer met in 1963 and became a lifelong couple. They married in Canada in 2007. Upon Spyer’s death in 2009, Windsor inherited her estate and subsequently claimed estate tax exemption for spouses. However, the IRS disallowed her claim on the basis of Section 3 of DOMA, which forced Windsor to fork over $363,053 in tax on the estate.
Surely those who supported DOMA in 1996 could have foreseen such a scenario coming to pass. If not for DOMA, Windsor would not have been on the receiving end of such injurious treatment by the IRS. Given the injurious conduct of the IRS towards conservatives, I would like to think conservatives would have some measure of sympathy for Edith Windsor. Or does conservative distaste for gay marriage outweigh conservative distaste for the IRS? Do those who supported the passage of DOMA in 1996 to convey moral disapproval of homosexuality and still support it today believe Windsor to be an immoral person and thus unworthy of their sympathy?
So long as Justice Scalia insists on ignoring the historical context that brought about DOMA and its consequences, I am left with no choice but to conclude that he is wrong in his judgment concerning U.S v. Windsor and that Justice Kennedy is right.