Ten years ago to the day, Supreme Court Antonin Scalia prophetically warned in his dissenting opinion of Lawrence v Texas (2003) that the majority opinion to strike down the sodomy laws of Texas would put into question other moral choice laws in other states. He wrote, “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity … every single one of these laws is called into question by today’s decision.”
Well, as of today…one down.
In a case that has no traditional standing in the courts, the Supreme Court has allowed the case, United States v Windsor, to be ruled on its merits alone, even though there was no adversarial controversy (in other words, no sides were in disagreement; there was no versus here). This is unprecedented; Justice Scalia called it “jaw-dropping.” He wrote ” … 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.” As someone has asserted, the majority has now set precedent for ALL questions of constitutionality to be decided by the Court, regardless of whether there is a controversy or not, granting itself the power of complete and total oversight (think Moses judging every affair of the nation of Israel; Leviticus, chapters 1-27).
Scalia added, “We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America… In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer.”
The 5-4 majority struck down DOMA, the Defense of Marriage Act, which was passed by congress in 1996 and signed into law by, then, President Bill Clinton. The majority opinion, written by Justice Anthony Kennedy, referenced no precedent; it did not interpret law on the basis of written law, but simply in accordance to the political will of the five justices in majority. It painted with a broad brush those who enacted DOMA as solely motivated by bigotry against homosexual people, denying altogether that there could possibly be a compelling state interest for society, children, and our national posterity in promoting traditional marriage (which in all history, across nations, has not needed an adjective until the last decade).
Writing for the dissenting opinion exactly ten years after Lawrence v Texas, Scalia made several observations and assertions…
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.
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. 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.
Justice Scalia accused the court of inserting its power into a national discussion that was better left to a public debate of the citizenry to either advance or deny:
Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy.
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.
But that the majority will not do. 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.
Scalia, a prophet? I couldn’t say, but many believe bigamy or polygamy will be next. We’ll watch… and pray.