Marriage Wins, Scalia Loses
It didn’t take long for the U.S. Supreme Court’s historic decision affirming same-sex marriage to be dismissed as “legalistic argle-bargle.” It’s right there on page 22 of Justice Antonin Scalia’s dissent, which shows that the debate is far from over.
Leave it to others -- such as President Barack Obama, the hundreds gathered outside the court, the millions of same-sex couples who will now have marriage rights, and the majority of Americans who support the right of gay people to marry -- to celebrate the court’s decisions today. Celebrate they should: By invalidating a federal law that denied benefits to same-sex spouses and allowing same-sex marriage to proceed in California, the court took a momentous step forward for the cause of civil rights and equal treatment under the law.
Scalia is having none of it. The court’s 5-4 decision in the case striking down the federal Defense of Marriage Act, written by Justice Anthony Kennedy, reduced Scalia to fits of italicized rage.
The first half of his remarkable 26-page dissent is a sarcastic yet principled complaint that the court shouldn’t have taken the case of U.S. v. Windsor in the first place. Both the U.S. (in the form of the Justice Department) and Windsor (Edith Windsor, a married lesbian who won her suit against the U.S. over a tax she wouldn’t have had to pay if her spouse had been a man) “agree that the court below got it right; and they agreed in the court below that the court below that one got it right,” Scalia writes. “What, then, are we doing here?”
He’s just warming up. Once Scalia wades into the merits of the case, besides making sophisticated legal arguments about argle-bargle (if you don’t have your copy of the OED handy: “disputatious argument, bandying of words, wrangling”), he mostly disputes the majority’s characterization of his view. He and his fellow opponents of same-sex marriage are not “unhinged members of a wild-eyed lynch mob.” They are not “enemies of the human race.” He resents having to listen to “a lecture on how superior the majority’s moral judgment” is.
Thus does Scalia capture two strains of the argument made by opponents of same-sex marriage: One, why are you forcing this issue on me? And two, why do you assume that I am a bigot?
On the first count, he may have a point, albeit a legalistic one. And at least he is consistent: He joined the court’s other decision today about same-sex marriage, in which it declined to rule on the constitutionality of California’s Proposition 8, which bans same-sex marriage. A federal judge had already overruled the ban, so in effect same-sex marriages will be allowed to proceed in California.
Outside the realm of the law, it’s pretty hard to make the case that same-sex marriage has forced its way onto the public agenda. It has been gaining public support, especially among the young, for more than half a decade.
Scalia’s larger worry, if that is the correct term, is that the court’s rulings will result in “a judicial distortion of our society’s debate over marriage.” It’s a cousin to the argument Justice Ruth Bader Ginsburg made last year about Roe v. Wade: that the 1973 decision legalizing abortion “moved too far, too fast,” short-circuiting the political process.
The more likely peril for the future of the marriage debate is the one Scalia’s dissent so vividly illustrates: that it will be reduced to name-calling and motive-questioning.
Same-sex marriage is more than just a legal or political issue. As Kennedy’s decision is at some pains to explain, it is also a matter of dignity -- he uses his favorite word nine times -- and, not to put too fine a point on it, morality. One of Congress’s purposes with the Defense of Marriage Act, he writes, was to express a “moral disapproval of homosexuality.”
Not every public-policy debate can be reduced to questions of morality. But some can, and the one about same-sex marriage comes close. Scalia’s dissent gets it exactly wrong: If anything, Kennedy’s opinion doesn’t go far enough. If gay people deserve the right to marry, why should that right be restricted to only 12 states plus the District of Columbia?
The answer, of course, is that the politics of civil rights are messy, and progress isn’t always linear. The same applies to judicial logic. As the debate about marriage proceeds, all sides would do well to remember that.
To contact the senior editor responsible for Bloomberg View’s editorials: David Shipley at email@example.com.