Yesterday’s 5-4 Supreme Court ruling invalidating the Defense of Marriage Act drew a lengthy, vituperative dissent from Justice Antonin Scalia. In that dissent, Scalia excoriated his colleagues for offering slipshod, even incoherent arguments, at one point launching an extended assault on his conservative ally Samuel Alito over what he considered a mishandling of a jurisdictional issue.
All this is par for the course when Scalia finds himself in the minority, right down to the cuttingly sarcastic asides on seemingly abstruse constitutional issues. (“One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it” was one of my favorite sentences.)
But the dissent got really interesting in its final pages.
Scalia has long argued that any embrace of gay rights by the Supreme Court, however qualified, would put that body on an inexorable path to full support of same-sex marriage. That prediction, which many dismissed as ridiculous a decade ago, took a big step toward vindication yesterday, and Scalia was not happy.
Both the majority and the primary dissent in the DOMA case took pains to distance the Court from a full-equality position. Justice Kennedy wrote that his opinion “and its holding are confined to those … marriages” already “made lawful by the State,” while the dissenting Chief Justice declared that “the Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States … may continue to utilize the traditional definition of marriage.”
To Scalia, these disavowals were nothing short of absurd. Justice Kennedy’s opinion amounted, he wrote, to “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 predicting the Court’s “inevitable” application of that same lecture to state laws against same-sex marriage is “just a matter of listening and waiting for the other shoe.”
To illustrate this point, Scalia did something I’ve never seen before in a Supreme Court dissent — he drafted the language of a future majority opinion for the other side. Specifically, he extracted passages from Kennedy’s DOMA decision and, by altering a few words with strike-throughs and italics, turned them into passages from the full marriage equality ruling that he believes could come as soon as the court’s next term.
Here are those three passages as Scalia amended them:
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 im- pose inequality, not for other reasons like govern- mental 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. [DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition. This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . .”
And it humiliates
tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.
Of the last passage, Scalia wrote that it did not “even require alteration, except as to the invented number.”
I’d quibble with some of Scalia’s phrasing — I think it’s likely that the Court would use the term “unions” rather than “relationships,” for instance — and I suspect that his assertion that the next decision might come as soon as 2014 was more a provocation than a prediction. But on the substance of his claim, I think he’s right on the money.
There’s nothing of any weight in yesterday’s majority opinion that distinguishes the federal ban on recognition of same-sex marriages from state bans, and the Court’s refusal to take its logic to its natural conclusion almost certainly reflects nothing more than a decision to wade slowly into the pool instead of jumping in at the deep end. There’s plenty of precedent for such a strategy, too — the Court did something similar the last time it took on the marriage equality issue, issuing a ruling invalidating state laws against interracial cohabitation in 1964, three years before Loving v. Virginia.
So Justice Scalia is correct. Barring a rightward shift in the Court’s composition, full marriage equality is coming to America, and soon.
And if the passages he cited do not appear in that forthcoming decision, it will only be because yesterday’s dissent embarrassed a future majority of the Court into leaving them out.