You may at first believe that the decision pertains to whether the hugely bipartisan Congress was right to create and whether Democrat president Bill Clinton acted lawfully to sign the Defense of Marriage Act into law, but this was a minor event.
What actually happened was the government became intolerably powerful yesterday. There was a fundamental, irreversible shift in the way this country is governed. If you hated DOMA, you will pass lightly over this. You got what you wanted. Who cares how. If you loved DOMA, you will shed tears for the culture and rage at those who would destroy tradition.
Both sides will miss what was most important.
Read Justice Kennedy’s opinion; rather his cri de coeur, which can be summarized thusly: “A majority of my fellow citizens are my enemies and are evil. And I want what I want because I want it therefore what I want shall be so.” Good enough if you agreed with his desires. But never was there such a failure by the Court to uphold its traditional—and Constitutional—purpose.
Yesterday the Court crossed the Rubicon and joined willfully, loudly, with flags waving, one of our warring camps. This will please you if it was your side. What you will fail to consider in your joy is the terrible price paid for the small victory you gained, one which would have been yours in a short time anyway. The Court is now and forevermore nothing but an immensely powerful instrument of whatever party happens to be in office. It now thinks itself as lawmaker.
Scalia recognized this. His dissent (starts p. 35) is the most astonishing document ever issued by a justice. He said, “The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case.”
I cannot here quote all of it, though it is tempting (all emphasis his).
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. 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 in America.
[A] single sentence lays bare the majority’s vision of our role…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.
“They did it to guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive.”
“The ‘judicial Power’ is not, as the majority believes, the power ‘to say what the law is,’ ibid., giving the Supreme Court the ‘primary role in determining the constitutionality of laws.'”
“The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit.”
“But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law isâ€”much less that its responsibility in that regard is a ‘primary’ one.”
“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.”
“There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are.”
“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.”
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. I dissent.
I must emphasize, if it already isn’t clear, that our concern is not DOMA. It was in how the Court came to its decision and what that means. Please let’s don’t let’s rehash DOMA itself, which Scalia summarized:
“[T]he majority says that the supporters of this Act acted with malice—with the ‘purpose‘ (ante, at 25) ‘to disparage and to injure’ same-sex couples. It says that the motivation for DOMA was to ‘demean,’ ibid.; to ‘impose inequality,’ ante, at 22; to ‘impose…a stigma,’ ante, at 21; to deny people ‘equal dignity,’ ibid.; to brand gay people as ‘unworthy,’ ante, at 23; and to ‘humiliat[e]‘ their children, ibid. (emphasis added).”