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.
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