Justice Scalia's Discussion of the Majority Opinion on DOMA and Same Sex Marriage

Dear readers, tonight let's look at the dissenting opinion of Justice Scalia concerning the subject matter of the Defense of Marriage Act (DOMA) case, in which Justice Kennedy, writing the Majority Opinion, concluded that, while the decision was applicable only to the facts in the case being decided, it was clear that DOMA violates the equal protection clause of the Constitution and that DOMA was passed by Congress and signed by President Clinton with the express intention of harming and humilating gay people. Justice Scalia had scathing disdain for Justice Anthony Kennedy's 5-4 Majority Opinion, saying it opened the door for a federal law allowing same-sex marriages and provided the appropriately targeted Supreme Court quotations to aid in the effort to legalize same sex marriage in every state. “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,” Scalia wrote. "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." Justice Scalia said that the Court’s decision takes issue especially with Section 3 of DOMA, which defined marriage on a federal basis as "only a legal union between one man and one woman as husband and wife" and the word "spouse" referring "only to a person of the opposite sex who is a husband or a wife." Scalia attacked the Majority's infringement into the definition of marriage, a matter always left to the states : "DOMA rejects this long-established precept" of states themselves determining the definition of marriage, and he said, however, that the Court’s Majority Opinion, written by Kennedy, goes well beyond merely rejecting a federal definition of marriage : "By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the Majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is 'no legitimate purpose' served by such a law and will claim that the traditional definition has the purpose and effect to disparage and to injure the 'personhood and dignity' of same-sex couples. The result will be a judicial distortion of our society's debate over marriage — a debate that can seem in need of our clumsy 'help' only to a member of this Majority." The decision, Scalia wrote, was not clear cut. "Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But 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." Perhaps the most cutting comment of all came when Scalia explained the Majority's animosity toward DOMA because they favor same sex marriage and want to assist its promulgation everywhere. Scalia described the Majority as attempting to maintain the illusion that the supporters of DOMA are "...unhinged members of a wild-eyed lynch mob..." when in fact, DOMA was simply an Act passed by Congress and signed by President Clinton to provide stability and uniformity in the definition of marriage at the federal level when dealing with a great variety of state statutes regulating marriage during a period when the citizens of the United States were beginning to debate that very definition. Justice Scalia concluded that this citizen debate should have been allowed to continue without the Supreme Court cutting it short by deciding what the debate's conclusion "should" be.