The Supreme Court found a way around the Defense Of Marriage Act (DOMA) in the case of US v. Windsor. It seems that the federal government can't make any rules regarding marriage. That's up to the states. The State of New York decided that it would recognize same-sex marriage, so that should be good enough for the feds. No more DOMA.
Justice Kennedy, writing for the majority, had more choice words for the small cabal that foisted DOMA on We the People. DOMA contrives to deprive some married couples, but not others, of rights and responsibilities, creating two kinds of marriage within the same state, the preferred, heterosexual one and the denigrated, LGBT one. It blows up New York's attempt at recognizing the equality of same-sex marriage by inserting inequality into the entire U.S. Code.
You have to admit this is one of the most high-minded decisions we've seen from the Court in a long time.
You may have to admit it, but Justice Scalia does not. He splutters incoherently in his dissent, claiming at length that the Court should not have taken up this case. It's a waste of time, he says. The U.S. Government says its not going to defend the case, so there is no case. The court can't take a case unless there is a dispute. All we have here is a big love fest.
Scalia doesn't care that the Congress decided to defend the law. The Congress has no standing to do that. In a wonderful exercise in absurdity, Scalia goes off on a wild tangent, explaining what horrible things may happen if the Court starts accepting cases from the Congress instead of letting the political process work itself out.
True, John Marshall said it was the duty of the court to determine what the law is. But not this law, says Scalia. Only other laws. The laws Scalia wants to change or eviscerate. Laws like the Civil Rights Act and the Campaign Finance Law, to name just two.
But the Court already accepted this case and all his rhetorical fury is wasted, so Scalia goes on another visit to the land that never was, the one where the Constitution works perfectly and Congress only writes perfect laws. This time he visits the place where DOMA represented the will of the Congress and the President, so an attack on this law is an attack on the U.S. Government itself.
The backers of DOMA were not attacking LGBTs, oh no! The hatred the Christian right spewed for years in every media outlet was not relevant to DOMA. No, the Congress passed DOMA to avoid difficult choice of law issues where the laws of one state conflict with another, and President Clinton signed it because he approved of the law. In other words, they passed it to save time and money.
Neither of these propositions is even close to being true. The Republican Congress passed DOMA as a sop to its radical Christian minority, which needed something to show for their unfaltering loyalty to the Republican Party. Clinton signed the law, which he has since repudiated, because he needed the cooperation of the majority party to carry on the daily business of government. It was a gritty, sordid compromise, not a noble attempt to save the government time and money on useless court cases.
Scalia calls two Frenchmen, the Baron de Montesquieu and Alexis de Tocqueville. Both these men were nobles who distrusted democracy. They were also not American Judges nor elected by Americans, so, by Scalia's oft-expressed standards, their opinions should have no standing in a Supreme Court case, like the German Constitution he mocks in his dissent.
Finally, and more than once, Scalia expresses his surprise that the Court should take notice of LGBTs as an oppressed class. When did they become oppressed, he asks. At the time DOMA was passed, no state or foreign country recognized same-sex marriage, he says, so the supporters of DOMA could not possibly be attacking LGBT individuals.
Scalia seems obsessed with particular dates. But changes in social custom and belief are often sudden breaks with the past. When did the King of England become a tyrant instead of a benevolent ruler? When the Colonists signed the Declaration of Independence. When did African-Americans cease to be property and become citizens? When Abraham Lincoln issued the Emancipation Proclamation. In both cases, one act reversed hundreds of years of precedent.
So it is with the LGBT fight for full citizenship. The SCOTUS ruling in US v. Windsor is another signpost on the path.