Blinded by the Right: Justice Scalia’s weird dissent on DOMA is unsurprising


If you know me or read this blog you’ve probably sensed this already, but I’m kind of passionate about gay rights. I’ve always had the philosophy best espoused by the great and talented wizard of Twitter, Rob Delaney:

Today, the Supreme Court took one more step towards that truism and struck down the antiquated and morally bankrupt “Defense of Marriage Act” (or DOMA to those who like their moral bankruptcy in a short vowelly form). Justice Kennedy wrote of the ruling:

“The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity,” Justice Anthony Kennedy wrote in the majority opinion. “By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.”

Well said. Also obvious. Also late. But well said.

What does this mean for the gay couples that are married or want to marry?

The federal Defense of Marriage Act defines “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples. (Source: SCOTUSblog)

But while cheers could be heard from the halls of the Supreme Court to the halls of twitter, not everybody was happy.

English: Antonin Scalia, Associate Justice of ...

Antonin Scalia, wiping his glasses on his “fun zone area” (Photo credit: Wikipedia)

All four justices who opposed it (all conservatives *yawn*) wrote dissenting remarks but by far the unhappiest of the robed ones was Justice Antonin Scalia. In a head scratching dissent, he managed to contradict a ruling he made just yesterday, denigrate his own position, and otherwise flail around searching for a reason to be upset by this ruling. From Business Insider, which wrote a great article summarizing it.

Antonin Scalia dissented from the decision on the grounds that the court did not have standing to take the case.

He wrote:

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case… Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are wedoing here?

He also speculated that the majority justices are trying to hide their plan to issue a more sweeping ruling in the near future:

My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.

He criticized the majority for not fairly representing the views of Defense of Marriage Act supporters:

I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

Then he got really angry:

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. To hurl such accusations so casually demeans this institution. 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 ended with a bit of concern-trolling, saying today’s decision on DOMA was bad for both supporters and opponents of same-sex marriage:

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.

But if he were just honest with himself, his anger would make a lot more sense. It’s not that gay marriage is unconstitutional, or the court was wrong to strike down DOMA for this legal reason or that, Justice Scalia is just anti-gay. He just doesn’t like gay people, the gay “lifestyle”, or the idea of gay people marrying. He mistakes his emotional revulsion to gay marriage as rooted in an intangible legal violation (and if he could only find it, he would show them all!), but if he reflected on it, I think he would have to admit – if only to himself – that it is actually his personal homophobia getting in the way. He wouldn’t be the first to mistake intolerance with righteous indignation.

Nobody wants to view themselves as a “hater”, or a bigot, or a homophobe. Intolerance goes down so much easier when there are justifications for it. That’s why the Bible’s (scant) judgments on homosexuality are so convenient. And why the idea that there is a “gay agenda” influencing our culture is so alluring. Both allow Justice Scalia and people like Justice Scalia to feel comfortable holding an uncomfortable moral position.

Let’s not worry too much about Justice Scalia and his rationalizations for opposing this ruling, after all, they probably weren’t meant for us as much as they were meant to quiet his own inner doubts. As gay couples marry and raise children and not destroy the fabric of our society, the fragile positions that homophobia stands on will continue to crack. The voice inside Scalia’s heart will grow louder, and his positions will seem more sad, until – hopefully – one day, he’ll catch a glimpse of himself in a mirror or store window and the voice will be too loud to ignore and he’ll have to listen as it says again and again: you are wrong.


One comment

  1. Pingback: Alec Baldwin doesn’t seem like a bigot, so why did he say those awful things? |

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s