Scalia’s Intemperate DOMA Dissent and The Next Marriage Case

The most remarkable thing about the Windsor and Perry decisions is that they were wonderful victories for the gay community but left for another day the real question about the constitutionality of gay marriage bans. In the DOMA case, the Court only spoke about the injustice of discriminating against already married gay couples, wherever those couples happen to get hitched. And in the Prop 8 case, the Court dismissed the appeal because the procedure wasn't correct. 

WindsorScalia, of course, didn't think Windsor was so narrow. To him, Justice Kennedy's majority opinion all but cut the wedding cake at gay nuptials throughout the country. He argued — much like he argued in his dissent in Lawrence v. Texas in 2003 — that the Court's reasoning puts the law on a logical path toward eradicating the state's power to discriminate against gays wishing to marry. "As far as this Court is concerned," Scalia said, "no one should be fooled; it is just a matter of listening and waiting for the other shoe." He dares lower court judges to try to read Windsor any more narrowly, which, he meanders to argue, would, paradoxically, be both the right thing to do and impossible given the Court's broad language.

That's a treacherous path to navigate. At one point, he's calling for judicial nullification: he admits that the Windsor decision is broad and yet asks lower courts to treat it narrowly and undo whatever the Court supposedly did. He also takes on the canard of the inevitability of marriage freedom. The freedom to marry from coast to coast is not inevitable and Windsor, while getting us a step closer to our goal, by no means ends the debate. Scalia stridently ignores the fact that impact litigation and political victories are contingent results of contingent factors, from legal developments, to political will, to popular concern, to unknowable future events. To say that one decision today makes certain a very uncertain future is to overstate what the Court did and understate the battle we have ahead of us.

But that's not even the worst of it. After using his first few pages to argue that the case is not properly before the Court — an issue we discussed here — and calling the majority "arrogant" for its insistence on reaching the merits of Edie Windsor's case, Scalia decided to jump in to the merits of the case anyway. Let's set aside that fancy footwork — what Laurence Tribe aptly called "chutzpah" — for the moment. Scalia then tried to confuse us about what the case is really about. The majority, he said, lulled us into thinking that DOMA is unconstitutional because it took away powers from the States, e.g., it was a violation of federalism, not equal rights, and then actually decided the case on due process (a lawyerly phrase for "fairness" and "justice") grounds.

To Scalia, the case was about the proper role of Congress and the Courts. A federal court should not put itself in the position of striking down a duly enacted law passed overwhelmingly by Congress. Never mind that he did that very thing the day before, when he joined four colleagues to gut an important part of the Civil Rights Act despite Congress's recent overwhelming reauthorization of that provision. Never mind that he has written majority and dissenting opinions striking down all sorts of duly enacted laws of state legislatures and the U.S. Congress. And, more importantly, never mind that federalism did play an important supplementary role in the majority's decision.

Scalia remained willfully blind to the majority's reasoning that the obvious federalism violation — the U.S. Congress imposing a definition of marriage onto the states — required the Court to take a very close look at what Congress was doing. Justice Kennedy called it "careful consideration;" some of us call it "rational basis with bite" — somewhere between the lowest form of scrutiny and the heightened scrutiny that the President, the Second Circuit, and the rest of us wanted. The federalism concerns made Congress's actions suspect on their face; what made them illegal was the fact that their actions treated people unfairly without just cause.

But for someone with the intellectual dishonesty of Justice Scalia, these confusions, misdirections, and calculated omissions are par for the course.


Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.


  1. Canadian Observer says

    @disgusted american: while I totally understand the attraction of revenge fantasies, I would suggest your hopes would focus more on immediacy.

  2. bructer says

    He is part of the religious right, his son is a priest and a Christian Theologian and he will never evolve, he is stuck in the 14th Century like the rest of the Christian Theocracy. He and they make no sense what so ever, their thinking is based in Biblical Scripture and they like it that way. Although if they really read the Bible they would realize that it is not nearly as prejudiced as they are, it is all about their skewed interpretation. Their interpretation is based in hate, bigotry and the need to fell superior to someone. The fact that gays have be persecuted for thousands of years, is part of their defense, if it has been this way for so long how can it be wrong. Well it is and we will not stand for it anymore. They are on the wrong side of History.

  3. JDH1950 says

    The irrationality of his ranting and contradicting himself aside, anyone who is clearly so biased about any subject should recuse him/herself from participation in a case. However, to do that, one would have to have a healthy and functioning cognitive process – something he has clearly demonstrated he does not possess.

  4. says

    It’s not only ‘a treacherous path to navigate’, Ari, it is an exposure of an oath breaking justice. He has no intention of treating each case on its merits; au contraire, he approaches every case with a determined agenda.
    He is the greatest disgrace to SCOTUS in its entire history.

  5. Craig Nelson says

    This is a good start at Scalia’s dissent which though petulant is an important starting point in helping us to understand the thinking of the Court.

    Though intemperate and bombastic it points up some interesting questions. One is the role of the judiciary as against the ‘people’ – I would argue that ‘we the people’ includes citizens, legilsators, judges and office holders in a common polity as opposed to setting a sharp distinction between legislators as the people’s voice as it were and judges who may from time to time restrain the popular voice.

    A system where the popular voice is very lightly restrained is the United Kingdom. Yes the upper house of Parliament is unelected and yes there is the generally accepted European Convention on Human Rights. However the upper house can be over ruled reasonably easily and there is no power for judges to strike down legislation – where a law is incompatible with the Human Rights Act (itself an Act of Parliament) only Parliament can rewrite the law.

    So there are some mild checks and balances and on the whole it works fairly well. But that is not the American system because that is based on a special document called a constitution and does curtail the rights of the legislature – the court applying what’s in the document can strike laws down and it seems Scalia is very ready to do so.

    Furthermore it seems – whatever one calls it and however intricate the doctrine associated with it – that all modern states have an ‘equality guarantee’ of some sorts within their system that restrains what can happen – how majorities treat minorities, that states with an equality guarantee have a freedom to act but when they treat people less favourably there is a suspicion around what is happening – is it justified? does it have a rational basis rather than a mere assertion of a rational basis? And so on.

    There most certainly is an equality guarantee in the United States (for example 14th amendment and the framework layed out in Brown, Loving, Romer, Lawrence and now Windsor).

    And so Scalia’s admonition that the states must be free to decide either way doen’t really stack up well with that – and of course the import of passing a constitutional amendment on this is in many cases the opposite of letting people decide as it is well nigh impossible in many state constitutions to reverse such constitutional changes – therefore the people decided once x years ago around the time when either one or no state in the US allowed same sex couples to marry but as a result can’t ever get to reconsider that decision (that is of course a reason why a ‘leave it to the states’ means it will never happen in quite a number of those states unless via a SCOTUS ruling).

  6. Bill Lundy says

    From a human behavior standpoint, it’s important to recognize that intelligent people rarely get into such a heightened state of agitation and irritability (especially with the WRITTEN word) except when they are unable to actually convince themselves that they are right. This is a case of “methinks [thou] doth protest too much.” The fact that Scalia cannot maintain a cogent and rational argument in his written dissent is telling anyone willing to listen that he is incapable of formulating a rational basis for his dissent. EPIC FAIL on the part of Justice Scalia. That this man is an Associate Justice of SCOTUS is an embarrassment.

  7. Jere says

    Okay, so here’s a question that Ari might be able to answer. What is the prodcedure for producing these opinions? Are they proofread before they’re issued? Do the justices have staff members who read them and offer comments? If Scalia is contradicting himself within the same opinion (not to mention with himself on other opinions), why wouldn’t someone on his staff highlight that for him, so he can go back and rewrite and/or rethink so that he’s not making a fool of himself in front of the nation. It seems like there should be someone who can assist justices with this kind of stuff without regard to the actual opinion expressed.

  8. Jason says

    Ever since Scalia too a stand against the abomination that is gay marriage, I can’t help but feel he got a lot masculine, dominant and sexy in my eyes. Woof.

  9. RWG says

    @Jere: how long do you think a Clerk who fundamentally disagreed with the Justice would retain his job? You can be fairly certain the clerks who work in his chambers are all similarly disposed in their thinking.

  10. Joseph says

    See p.68 of the July 8th & 15th issue of the New Yorker if you want to see what Scalia is uniquely qualified to do, and his proper role on the Court.

  11. woodroad34d says

    You can always tell a good argument because there isn’t any logical rejoinder. Scalia’s comments are not good arguments and not particularly witty–just sour. Everything about Scalia is sour…makes you wonder if he needs a good proctologist.

  12. Randy says

    Having read the decision and the various dissents, I can understand why Scalia is upset.

    We should always be concerned when decisions in our favor are not explained adequately and with precedent.

    AFER’s team did a great job of doing exactly that, but little of it made it into Kennedy’s decision.

    Scalia is right to rip it to shreds.

  13. Pete N SFO says

    Can we access his Senate Confirmation Hearings? I’d love to know if there are any foretelling moments hidden back there.

    He’s the douchiest of douchebags. He’s a typical hubris-filled, know-it-all, conservative, content to ignore the realities immediately in front of him for the sake of ideology.

    I have (former) family friends like that… they imagine money earns them superiority & the right to be discontented.

    Whatever, dude.

  14. Marek says

    Well, I’ve never thought I would be defending Scalia… But here I go – I do not agree with what you write. :p

    I think Scalia does have a point when he writes that majority opinion is not very clear. Majority does strike Windsor on equal protection but does state *at all* the level of scrutiny used for tests. It spends quite a big part on how important marriage is (which does seem like a bit of due process? but it should not matter if equal protection is the basis?). And it does spend quite a bit on responsibility of states and federal government, although at the end it does not raise any federalism claims, and uses the whole part about states vs congress just to say “what congress did was unusual”.

    But: my impression is that this is exactly what the “rational basis with a bite” is about: if you have an important right (even if you don’t want to declare [yet] if it is a due-process-protected fundamental right) and the class is historically disadvantaged (even if you don’t want to say [yet] it’s a well-defined class from regular higher-scrutiny equal-protection considerations) and the legal action is weird (really sweeping wide, or unprecedented or whatever) then you get “rational basis with a bite”. Which does not match/fulfill previous/regular/old equal-protection or due-process considerations really.

    Its the majority who chickened out from stating clearly that they are introducing (or confirming from Plyler, Cleburne and Romer) another level of scrutiny. And what are the rules of the game here. Not phrasing it explicitly gave way to Scalia’s reasoning: which is sound as long as
    * he chooses to stick to the regular (old :) ) due-process or equal-protection or federalism rules
    * he sticks to saying that majority striking a law down has to show that these (old/regular) rules were fulfilled and here they did not – his examples are just to show that what majority writes would not be enough to fulfill these old/regular rules.

    I think the legal mistake of Scalia is ignoring the concept of “rational basis with a bite”. But majority gave him such an option by not stating clearly what they were doing…

    Once you rip off all “decorative” speech out of Scalia’s dissent he does have a legal point. And his examples do prove what he needs to have proven at a specific point of his reasoning. I wish he was more careful with his language, and that either he used more general examples or stressed that his examples are there just to prove a point and not to say something general. But I wish even more that the majority was more clear in what they write…

    I think the legal game of Scalia is a very formal one. And I don’t think what you write above brings much to this game – even if from a not-formal not-legal point of view I do sympathize with what you write…

  15. DC Insider says

    Marek, I fear you give Scalia too much credit, in that you are not alone. We often hear him described as “brilliant” and other adjectives, but as a judge, and one who has read numerous opinion and his own “scholarly” articles, I have come tot he conclusion that Scalia is little more than an ideologue dressed in a robe.

    Mind you he’s not alone. But the law to him is not an exercise in rational thought leading to a fair and just conclusion, but a tool to reach a previously determined outcome. In that manner he is a phony; a pretender to the throne.

    SCOTUS for many years was a bastion of civility, where great minds debated and disagreed, but came together to recognize societal changes and often reached critical decisions in 9-0 majorities. These men (and they were men at the time) were true jurists.

    Today, largely because of the politicized confirmation process, we get lawyer-politicians like Scalia. These lawyer-politicians have an agenda, not a calling. It is a very sad day in American jurisprudence that the likes of Scalia and Thomas and Alito can sit on the highest court in the land with no qualification to be there and no understanding of their role.

    Life tenure for them is a life sentence for the rest of us.

  16. Geoff says

    Scalia is much too stupid to do “snark”. Please. He’d have to go to night school for at least 10 years. He does “hate” real well, though.

  17. Rob says

    The dirty secret of SCOTUS is that they are so entirely political. That came up in Bush v Gore, where all the conservatives voted against states rights, and all the liberals voted for them. The judicial reasoning is so much handwaving.

    Scalia loves congress and the states when they do conservative things and disembowels them when they do liberal things- plain and simple. It is particularly unvarnished now.

    I still think that the idea of the majority voting on what rights a minority can have is totally absurd. It is up to the courts to protect minorities based on what is fair. Period.

Leave A Reply