June 19, 2018
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Gay couples celebrate, Scalia grumbles and marriage wins

Charles Dharapak/Pool | Reuters
Charles Dharapak/Pool | Reuters
U.S. Supreme Court Justices Chief Justice (from left) John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan


It didn’t take long for the Supreme Court’s historic decision affirming same-sex marriage to be dismissed as “legalistic argle-bargle.” It’s right there on Page 22 of Justice Antonin Scalia’s dissent, which shows that the debate is far from over.

Leave it to others — such as President Obama, the hundreds gathered outside the court, the millions of same-sex couples who will now have marriage rights, and the majority of Americans who support the right of gay people to marry — to celebrate the court’s decisions Wednesday. Celebrate they should: By invalidating a federal law that denied benefits to same-sex spouses and allowing same-sex marriage to proceed in California, the court took a momentous step forward for the cause of civil rights and equal treatment under the law.

Scalia is having none of it. The court’s 5-4 decision in the case striking down the federal Defense of Marriage Act, written by Justice Anthony Kennedy, reduced Scalia to fits of italicized rage.

The first half of his remarkable 26-page dissent is a sarcastic yet principled complaint that the court shouldn’t have taken the case of U.S. v. Windsor in the first place. Both the United States (in the form of the Justice Department) and Windsor (Edith Windsor, a married lesbian who won her suit against the U.S. over a tax she wouldn’t have had to pay if her spouse had been a man) “agree that the court below got it right; and they agreed in the court below that the court below that one got it right,” Scalia writes. “What, then, are we doing here?”

Once Scalia wades into the merits of the case, besides making sophisticated legal arguments about argle-bargle, he mostly disputes the majority’s characterization of his view. He and his fellow opponents of same-sex marriage are not “unhinged members of a wild-eyed lynch mob.” They are not “enemies of the human race.” He resents having to listen to “a lecture on how superior the majority’s moral judgment” is.

On the first count, he may have a point, albeit a legalistic one. And at least he is consistent: He joined the court’s other decision Wednesday about same-sex marriage, in which it declined to rule on the constitutionality of California’s Proposition 8, which bans same-sex marriage. A federal judge had already overruled the ban, so in effect same-sex marriages will be allowed to proceed in California.

Outside the realm of the law, it’s pretty hard to make the case that same-sex marriage has forced its way onto the public agenda. It has been gaining public support, especially among the young, for more than half a decade.

Scalia’s larger worry, if that is the correct term, is that the court’s rulings will result in “a judicial distortion of our society’s debate over marriages.” It’s a cousin to the argument Justice Ruth Bader Ginsburg made last year about Roe v. Wade: that the 1973 decision legalizing abortion “moved too far, too fast,” short-circuiting the political process.

The more likely peril for the future of the marriage debate is the one Scalia’s dissent so vividly illustrates: that it will be reduced to name-calling and motive-questioning.

Scalia’s dissent gets it exactly wrong: If anything, Kennedy’s opinion doesn’t go far enough. If gay people deserve the right to marry, why should that right be restricted to only 12 states plus the District of Columbia?

The answer, of course, is that the politics of civil rights are messy, and progress isn’t always linear. The same applies to judicial logic. As the debate about marriage proceeds, all sides would do well to remember that.

Bloomberg News (June 27)

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