Beliefs

On DOMA, Scalia has a point

In striking down the Defense of Marriage Act, the Supreme Court took a dim view of the motivation of Congress in prohibiting same-sex partners joined in matrimony by a state from obtaining the federal benefits to which married couples are entitled. In his well-nigh-apoplectic dissent, Justice Antonin Scalia sees this as an indication of what's to come. Let us hope.

A symbolic marriage cake in favor of allowing SSM in Italy
A symbolic marriage cake in favor of allowing SSM in Italy
June 26, 2013
By
SSMIn striking down the Defense of Marriage Act, the Supreme Court took a dim view of the motivation of Congress in prohibiting same-sex partners joined in matrimony by a state from obtaining the federal benefits to which married couples are entitled. In his well-nigh-apoplectic dissent, Justice Antonin Scalia sees this as an indication of what’s to come. Let us hope.
Writing for the court, Justice Anthony Kennedy declared:

The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

Eager to limit the effect of the decision as much as possible, Chief Justice John Roberts emphasized in his dissent that the decision is grounded in the right of states to determine the nature of marriage, and thus should in no way be understood as pushing SSM on jurisdictions that do not want to permit it. Scalia begs to differ:

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, see ante, at 25, 26.

That Kennedy might have used more neutral language cannot be denied — and if the decision were merely about Congress overstepping traditional jurisdictional bounds he probably would have. But by describing state legitimation of SSM as a protection of “personhood and dignity,” he goes a good deal further.
There’s a certain parallel here to Jefferson’s famous letter to the Danbury Baptists, who had asked the newly elected president to use his influence to get Connecticut to do away with its Congregationalist establishment. Recognizing that the federal government had no authority to enforce the Establishment Clause on a state, he nevertheless put his thumb on the scale, writing:
I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

President Obama’s own statement on the DOMA decision has more than a whiff of this Jeffersonian intervention about it: “The laws of our land are catching up to the fundamental truth that millions of Americans hold in our hearts:  when all Americans are treated as equal, no matter who they are or whom they love, we are all more free.”

The Supreme Court has expressed a similar point of view. Whether it agrees to hear challenges to state law by SSM proponents, as Scalia fears, or sticks to its federalist guns, the Court has made clear that SSM has to do with equality. And in American society, equality sooner or later tends to prevail.

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