Scalia issues blistering dissent on Supreme’s Defense of Marriage ruling


Gay marriage supporters went two for two Wednesday at the Supreme Court – but not without hearing a contemptuous dissent read from the bench by Justice Antonin Scalia over one of the most important rulings of this term.

In 5-4 rulings — but with different justices making up the majorities — the court struck down the 1996 Defense of Marriage Act that barred federal recognition of same-sex marriages and declined to rule on a case involving Proposition 8, a California law that banned gay marriage in the state by a popular referendum that was later overturned by a court.

gay marriageIn the DOMA case, Justice Anthony Kennedy wrote for the majority that the law was a “deprivation of the equal liberty of persons that is protected by the Fifth Amendment,”

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Kennedy wrote, according to The New York Times.

Kennedy was supported by Justices Sonia Sotomayor, Elena Kagan, Ruth Bader Ginsburg and Stephen Breyer.

Dissenters were Scalia, Chief Justice John G. Roberts Jr., Clarence Thomas and Samuel A. Alito Jr.

And, boy did Scalia dissent.

Scalia called the majority ruling high-handed, intolerant and willing to consider those who disagree to be “enemies of the human race.” (For the full text, go here.)

“In the majority’s telling … this story is black-and-white: hate your neighbor or come along with us …” Scalia said from the bench, a move justices make generally only when they feel strongly about a particular case.

“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 … 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.

“It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”

He also suggested that the ruling will not end the controversy over gay marriage, just as other court rulings in controversial issues have only left them fester for decades after they’re decided.

“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,” Scalia wrote. “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.”

In the California case, the court ruled that it could not take up a challenge to Proposition 8 because the state under Gov. Jerry Brown refused to appeal the court’s decision overturning the referendum.

The court ruled supporters of the proposition could take the state’s place in arguing for the referendum in court.

That means other states that have bans on same-sex marriage are unaffected by Wednesday’s ruling.

That decision was written by Roberts, supported by Bader Ginsburg, Breyer, Scalia and Kagan.

Dissenters were Thomas, Kennedy, Alito and Sotomayor.


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