In a blistering rebuke of the Supreme Court decision to overturn the Defense of Marriage Act, a dissenting opinion written by Justice Antonin Scalia said that the self-governing power of the people has been eroded.
“Today’s opinion aggrandizes the power of the court to pronounce the law,” with the predictable consequence of diminishing the “power of our people to govern themselves,” wrote Scalia, who was joined in his dissent by Justices Clarence Thomas, Samuel Alito and Chief Justice John Roberts.
Scalia described the “assertion of judicial supremacy over the people’s representatives in Congress and the executive” as “jaw-dropping.”
“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,” said Scalia. “This image of the court would have been unrecognizable to those who wrote and ratified our national charter.”
Scalia had particular disdain for fellow Justice Anthony Kennedy’s ruling in the 5-4 case, saying it opened the door for a federal law allowing same-sex marriages. “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,” he wrote.
In another section of his ruling, Scalia said, “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.”
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.”
“DOMA rejects this long-established precept” of states themselves determining the definition of marriage, said the court’s the majority opinion, written by Kennedy.
However, the court’s action goes well beyond merely rejecting a federal definition of marriage, Scalia says.
“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 institution,” said the 77-year-old justice.
And he said that the decision in the case 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.”
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