In a scathing dissent laden with sarcasm and condescension toward his fellow justices, Supreme Court Justice Antonin Scalia wrote that the court’s majority used legalistic “argle-bargle” as its rationale for striking down the key portion of the defence of Marriage Act.
Scalia accused the majority of using federalism to masquerade as rationale for the wish to make a sweeping decision on the overall concept of gay marriage.
“Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.
In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by ” ‘bare . . . desire to harm'” couples in same-sex marriages.”
Scalia lashed out at the majority for overturning a democratically passed law. This opinion came, however, just one day after he sided with the court’s conservative majority in overturning a crucial portion of the landmark Voting Rights Act of 1965. In that majority opinion, Chief Justice John Roberts wrote that though the law had been reauthorized with broad bipartisan support in Congress, some of its provisions were outdated.
Scalia also made reference to the case Lawrence v. Texas, which the court struck down 10 years ago today. It affirmed the right of gay couples to have consensual sex — or, as Scalia wrote Wednesday, sanctioned “homosexual sodomy.” He tied that ruling, which he opposed, to the court’s decision to strike down DOMA, predicting the ruling would lead to fully legal same-sex marriage throughout the country.
“When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with ‘whether the government must give formal recognition to any relationship that homosexual persons seek to enter. Now we are told that DOMA is invalid because it ‘demeans the couple, whose moral and sexual choices the Constitution protects’ […]
“It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favour of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will ‘confine’ the Court’s holding is its sense of what it can get away with.”
Business Insider Emails & Alerts
Site highlights each day to your inbox.