Antonin Scalia's Gay Marriage Dissent Is Dripping With Contempt And Sarcasm

antonin scalia

Today the Supreme Court threw out Section 3 of the defence of Marriage Act, which bars the federal government from recognising same-sex marriages even if they are allowed under state law.

Justice Antonin Scalia filed a scathing dissent in which he called the majority opinion as “rootless and shifting,” “confusing,” and “perplexing,” that it consists of “non-specific hand-waving,” and that it demonstrates “real cheek.”

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

He says:

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 we doing here?

He also speculates 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 criticises the majority for not fairly representing the views of defence 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 gets really angry:

To be sure (as the majority points out), the legislation is called the defence 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 ends 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.

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