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Scalia’s DOMA Dissent

So Justice Kennedy did what he usually does, put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism. If you’ve read Romer v. Evans or Lawrence then you’ve seen this show, more or less. Kennedy, I think, only deepens the application of his own philosophy and attempts to vindicate why he must appeal to it to decide that DOMA is unconstitutional. Coming soon, of course, is the use of the majority opinion to throw out the state prohibitions. Some notion of self government, some republic.

While the decision was 5-4, Kennedy’s chief opposition is Justice Scalia. Rod Dreher comments on and posts a major portion of Justice Scalia’s dissent in the DOMA case at the American Conservative blog. A brief excerpt:

The Court . . . accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.; to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. 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. To hurl such accusations so casually demeans this institution.

In the majority’s judgment, 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 “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. 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.

The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. 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.

Reader Discussion

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on June 30, 2013 at 15:19:19 pm

Some 80 - 90% of Americans (depending on the poll) consider themselves decent people and adherents to one of the Monotheistic religions. There is a wide divergence on what that means morally, but Judge Kennedy, per Scalia's excoriating rebuke, holds that their common religious belief on marriage is nothing more than bigotry. Thus the vast majority of Americans have the same civic status as that of pirates and slavers. These people, hostis humani generis, enemies of mankind, were summarily executed, by all nations, for most of human history. They did not have the legal status of protection of law; they were hunted outlaws.
Judge Kennedy's words are internally contradictory with the ruling that the authority of DOMA falls to the states, not the federal government. How can 38 state constitutions and more statutes, enshrining the will of hostis humani generis stand before the equal rights of all Americans? It can not; these laws on marriage now have no legitimacy. Ergo homosexual marriage is the law of the land.

Considering the California Section 8 decision, citizens, even majorities, have no standing, they are hostis humani generis if elected officials will not do their job.. This is an vile alignment with the DOMA decision. The majority of Americans have lost their rights to lawyers. Judge Kennedy has done great evil, injured the Judiciary, and the American people

Judge Kennedy is a clear example of a saying in my family, "Over time, you can not distinguish the actions between a knave or a fool." He is an old man, and will pass in a few years. I believe in a last judgment; I do not envy him. He is worthy of prayer.

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R. L. Hails Sr. P. E.

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.