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.


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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.