In light of the recent decision by the Supreme Court of the United States to overturn the Defense of Marriage Act (DOMA), many have spoken out against the verdict, none more stridently than Justice Antonin Scalia. Scalia attacked Justice Kennedy’s majority opinion on several fronts, arguing that in repealing the bill the court had effectively labeled DOMA supporters “enemies of the human race.” The gist of Scalia’s argument, and a central passage from his dissent states that “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.” What Scalia attempts to convey through this argument is that DOMA was not an attack on gay people, but simply a cementation of “traditional marriage” and that the two are far from synonymous.
However, in the window where these strands of thought differ lies the primary justification for the Supreme Court’s decision. What Scalia’s “condemn, demean and humiliate” analogy fails to recognize (among other issues) is that upholding DOMA given the opportunity to overturn it would have rendered the act a tacit attack on gay rights.
This is apparent if we consider, say, interracial marriage. Though an act defining marriage as “the union between a white man and a white woman, or a black man and a black woman,” may not be intended, as Scalia suggests, to “condemn, demean and humiliate” black or white people, but merely to uphold “traditional marriage,” it would, nevertheless, attack equal rights. Scalia’s statement that “[DOMA] 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” could have just as easily have been the basis for the prohibition against interracial marriage. Indeed, the trial judge in the miscegenation case, Loving v. Commonwealth of Virginia, found justification for convicting the Lovings’ of breaking that law in the belief that:
“almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
While Scalia’s point may be historically correct, it is in no way a justification for upholding DOMA. Indeed, even if DOMA’s sole purpose was to remain true to history, its effect was to deprive gay couples of rights and privileges enjoyed by other legally married couples for no other reason than that they are gay. Rejecting the opportunity to repeal the act would unequivocally have been an attack (though perhaps an indirect one) on gay rights.
Though Scalia has frequently ruled in opposition to gay rights, in his dissent he made few outright objections to the idea of same-sex marriage, choosing instead to attack the power of the court (or lack thereof), in ruling on DOMA to begin with. Scalia relied on the idea that the court should have “[promised] all sides of this debate that it was theirs to settle,” lamenting the fact that the court had “cheated both sides.”
Regardless of the legitimacy or illegitimacy of Scalia’s denigration of the court for its assumed role in DOMA’s overturning (“an assertion,” Scalia writes, that “envisions the Supreme Court standing [or rather enthroned] at the apex of government”), it is Scalia’s suggestion that historical precedent may justify current inequality that renders his opinion misguided.
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