The Blaze.com published the highlights of Justice
Antonin Scalia’s dissent on the majority opinion that struck down section 3 of
DOMA. This pretty much sums up what is
happening in Washington D.C.
The Court is eager—hungry—to tell everyone its view of the legal
question at the heart of this case. Standing in the way is an obstacle, a
technicality of little interest to anyone but the people of We the People, who
created it as a barrier against judges’ intrusion into their lives. They gave
judges, in Article III, only the “judicial Power,” a power to decide not
abstract questions but real, concrete “Cases” and “Controversies.” Yet the
plaintiff and the Government agree entirely on what should happen in this
lawsuit. They agree that the court below got it right; and they agreed in the
court below that the court below that one got it right as well. What, then, are
we doing here?
• That is jaw-dropping. It is an assertion of
judicial supremacy over the people’s Representatives in Congress and the
Executive. It envisions a Supreme Court standing (or rather enthroned) at the
apex of government, empowered to decide all constitutional questions, always
and everywhere “primary” in its role.
• There is, in the words of Marbury, no “necessity
[to] expound and interpret” the law in this case; just a desire to place this
Court at the center of the Nation’s life.
Placing the Constitution’s entirely anticipated political arm wrestling into
permanent judicial receivership does not do the system a favor. And by the way,
if the President loses the lawsuit but does not faith- fully implement the
Court’s decree, just as he did not faithfully implement Congress’s statute,
what then? Only Congress can bring him to heel by . . . what do you think? Yes:
a direct confrontation with the President.
• There are many remarkable things about the
majority’s merits holding. The first is how rootless and shifting its
justifications are. For example, the opinion starts with seven full pages about
the traditional power of States to define domestic relations—initially fooling
many readers, I am sure, into thinking that this is a federalism opinion. But
we are eventually told that “it is unnecessary to decide whether this federal
intrusion on state power is a violation of the Constitution,” and that “[t]he
State’s power in defining the marital relation is of central relevance in this
case quite apart from principles of federalism” because “the State’s decision
to give this class of persons the right to marry conferred upon them a dignity
and status of immense import.”
• My guess is that the majority, while reluctant to
suggest that defining the meaning of “marriage” in federal statutes is
unsupported by any of the Federal Government’s enumerated powers, nonetheless
needs some rhetorical basis to support its pretense that today’s prohibition of
laws excluding same-sex marriage is confined to the Federal Government (leaving
the second, state-law shoe to be dropped later, maybe next Term). But I am only
guessing.
• Some might conclude that this loaf could have
used a while longer in the oven. But that would be wrong; it is already
overcooked. The most expert care in preparation cannot redeem a bad recipe. The
sum of all the Court’s nonspecific hand-waving is that this law is invalid
(maybe on equal-protection grounds, maybe on substantive-due- process grounds,
and perhaps with some amorphous federalism component playing a role) because it
is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex
marriages.
• 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.
• 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.
• 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.
• In the majority’s telling, this story is
black-and-white: Hate your neighbor or come along with us. The truth is more
complicated. It is hard to admit that one’s political opponents are not
monsters, especially in a struggle like this one, and the challenge in the end
proves more than today’s Court can handle. Too bad. A reminder that
disagreement over something so fundamental as marriage can still be politically
legitimate would have been a fit task for what in earlier times was called the
judicial temperament. We might have covered ourselves with honor today, by
promising all sides of this debate that it was theirs to settle and that we
would respect their resolution. We might have let the People decide.
• 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
H/T: NC
Renegade
