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The Supreme Court DOMA decision was widely reported as a victory for justice; wise Supreme Court Justices making sure that the outdated laws of the nation keep up with society’s new standards. At best, in slightly more responsible coverage, it was portrayed as a victory of supporters of gay marriage and/or gay rights, and a setback for those against either.

The Obama administration was not a major player in mainstream coverage of this story, in the event they were portrayed simply as a dutiful executive branch, eager to enforce the wisdom of the elder Justices, guardians of equality. Sure, Obama as part of the leftist camp was happy with the decision, and happy to abide by the new more “egalitarian” rules, but that was the extent of it we were told.

Justice Antonin Scalia was reported endlessly as having delivered a “scathing”, “sarcastic”,” “sassy”, “flaming” and “blistering” dissent. The underlying tone of these reports was describing a hurt and confused man out of step with his times at best, and at worse a raging bigoted Justice lashing out desperately against the wise decision that he, like every other human, could not possibly have any valid arguments against.

The Huffington post had no problem describing Scalia’s dissent as “choked with rage” and

less a legal argument and more a plea for recognition that there are “good people on all sides.” In it, he repeatedly played the role of victim, complaining that it is unfair that his opposition to gay marriage is no longer consider considered legitimate.

As is often the case, nothing could be further from the truth. Not only was Justice Scalia’s argument completely a legal argument, but in fact it was the majority that departed from legal concepts into emotional and philosophical arguments to tell the world as they so desperately wanted to, that they in fact were not against gay marriage.  Likewise, the Obama administration was not the quiet executive awaiting a decision on the sidelines, but the orchestrater of an unprecedented constitutional manipulation that in collusion with friendly media coverage and the leftist Justices, brought about exactly the results it desired. Certainly, they must feel very smart… semi-complex coups of this kind are (rightly) rare in modern politics, but their success has less to do with intelligence than with collusion of the key actors who should have stopped the charade.

The decision was won by the narrowest margin, it was a 5-4 decision and thus Justice Scalia was far from the lone “raging madman” that he was portrayed as. It is true, one must admit, that Supreme Court decisions are often praised or derided by a superficial test of the political conclusion, without any consideration (or even basic knowledge) of the underlying legal case.

For a simplified and somewhat extreme example, if certain states banned rich white men from voting in elections, and the issue was brought before the Supreme Court, a “pro rich white man” decision would be seen as a conservative victory, and likewise upholding the constitutionality of the state ban would be seen as a liberal success. Obviously, this is absurd on the face of it; Scalia (and hopefully all other Justices) would oppose such an unconstitutional breach of rights by the states, regardless of whether the group being stopped from voting was rich white men, poor black women, or any other group. The legal concepts are the same, but the political consequences could be quite different.

A real life example of this phenomena is the voter ID issue (which I have covered previously). The Democrats and the left in general quite unashamedly tend to oppose any ID requirements at the voting booth because it is believed that this will lead to relatively more votes for them. The type of people to whom a valid ID is an obstacle, will tend to vote more left than right (ie illegal aliens, but we can grant for now the left’s argument that their LEGAL voters are incapable of possessing valid IDs yet capable of voting correctly). On the flip side, one can argue the right tends to favor ID requirements for the very same reason (proportionally more votes for them).

However, it should hopefully be obvious that the Supreme Court should not be deciding the merits of cases by counting votes, regardless of the personal political leanings of the Justices. In the case of voter ID requirements, if such a law is found to be violating constitutional rights, or not violating them, then that should decide the matter regardless of which political party will (at least in the short term) stand to benefit. Unfortunately, the media will tend to report that decision as a slightly dressed up version of “Supreme Court does not want poor minorities to vote” or alternatively “Supreme Court defends rights of poor minorities to vote”.

The real headline should be more like “Supreme Court decides that requiring Voter ID is/is not Unconstitutional”.

Thus, the DOMA decision was no exception in that the decision was going to be reported as “Supreme Court thinks gay marriage is OK” or “Supreme Court hates gays and bans their marriages”; when in fact, neither would have anything to do with reality or the case at hand – but knowing that would require reading a bit.

Having said that, the DOMA decision, the way it came to court, and the way it was reported was far from usual, in fact unprecedented, and it was this that deeply troubled Justice Scalia.  The Obama administration manipulated a willing court for its own political ends. The terrible precedents it sets in many different ways, are of no concern to it nor are they to the bumbling jingle media.

So what really was the question before the US Supreme Court in regards to DOMA (US vs Windsor)?

Well, to understand that important and virtually ignored question, first let us ask what DOMA itself is. The Defense of Marriage Act is a Federal Law passed in 1996 under the Clinton administration. It passed both houses of congress with very large bi-partisan majorities and was signed into law by Bill Clinton. In the 90’s it became apparent that some states may at some point redefine their legal state marriages as allowing for same-sex marriages.

Since the entire US Federal code, and likewise every state code was written during the last two centuries assuming state licensed marriages were between a man and a woman, this created a potential problem. The assumption was taken for granted, so whenever the word “spouse” or “married” was used in laws, codes, regulations etc that were meant to refer to a man and a woman, their meaning could become unclear. These laws were written with that in mind, and so to simply change the definition of an English word within the laws, would potentially inadvertently change the meaning of the laws from what those who voted for the law meant, into something they did not.

If today, congress and/or states want to change laws or enact new ones that refer to or include (or exclude) same-sex marriages they are free to do so. But it would be wrong, not to mention a legal mess, to alter the English language in order to alter the meaning of thousands of laws.

Slavery was not eradicated by changing the definition of the word “slavery” so as to misinterpret what previous lawmakers had meant at their time, but rather by passing new laws (in this case a Constitutional amendment) that abolished it. Something the new lawmakers DID mean.

DOMA simply meant to prevent that revisionism. Realizing for the first time that states could issue marriage licences to any growing number of arrangements, same-sex couples, inter-species (ie dog lover to his dog) marriages, inter-galactic ones, etc etc, it defined what the Federal government meant by “marriages” and “spouses” up until that time. A state was most definitely free to still define whatever new marriages it wanted to, but it did not mean that every other states’ law and every Federal Law would keep changing every time ANY state redefined its legal state marriage. In a much real sense, if the Federal Government is not allowed to define what it means, a “race to the bottom” is likely where states benefit from ever more broad definitions of marriage so that more benefits will apply to more of its citizens (paid for by all taxpayers). A state could define single people as married so that everyone is entitled to everything the federal lawmakers specifically meant for traditional married households.

The gratuitous usage of “Banning” and “Legalizing”

As I have written bout elsewhere, I want to stay away from the language of “banning” and “legalizing” in the context of gay marriages, because this false definition that is used repeatedly in the media of the arguments at hand give people the impression of having to choose between allowing gays to exist legally or not. This is not the case, there is no state in the union where currently people get arrested or prosecuted for being gay.  The same holds true for those who marry. In most states, same sex couples simply cannot get a state issued marriage licence. That’s the entire argument, not legality of existence.

On the contrary, whereas polygynous fundamentalist Mormons who practice Plural Marriage can be and are arrested and prosecuted for bigamy, (even though they also do not get state issued marriage licence for each of their wives), no gay man is arrested for having too many same sex spouses (in any state).

Mormon plural marriage, one can imagine, has a strong case for constitutional protection under Freedom of Religion. Mormonism, the Church of LDS and some related groups are a couple of centuries old. It is by any standard, a true religious tradition, itself resting on Christianity, which itself nearly two thousand years old, and the Old Testament even much older. Not only is it a religion, but not one really “alien” to Western Protestant thought. It’s not as if it advocates human sacrifice, mummification, or any of one of the many concepts truly “alien” religions have and do advocate in various parts of the world. Save the issue of polygyny, it has no real clashing norms with western society, and even polygyny has been alien to the Western World only after being its norm for thousands of years (as one can clearly see in the Bible itself).

Despite these facts, the Supreme Court in Reynolds vs the United States, upheld the constitutionality of bigamy laws, even against issues of religious freedom (as in the case with Mormons). The court claimed that firstly, the constitutional protection on religious freedom is limited. To paraphrase, it is unlimited when it comes to thought, belief and opinion, but quite limited when it comes to actions. Otherwise, religious freedom can theoretically excuse any action, from murder and rape to human sacrifice.

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.

To backup their point, the Justices quoted a letter from Thomas Jefferson (to the Danbury Baptist Association)

Believing with you that religion is a matter which lies solely between man and his God; that he owes account to none other for his faith or his worship; that the legislative powers of the government reach actions only, and not opinions — I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion or prohibiting the free exercise thereof,’ thus building a wall of separation between church and State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore man to all his natural rights, convinced he has no natural right in opposition to his social duties.

Secondly, the court declares that polygamy has

always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.

Furthermore, they state that “from the earliest history of England, polygamy has been treated as an offence against society.” They cite a long history of English common law banning the practice, and citing that it was also banned in every part of the colonies and the early United Stated under the founding fathers$. All of this points to the conclusion that bigamy cannot be constitutionally protected since it was constantly illegal before and after the framers set up the US federal and state governments.

The logic is normally sound, but in this case missed a small but important point. The founders never met a Mormon. The issue did not come up. It is one thing to ban bigamy for those who “feel like” practicing it, and another for those who believe it is divine. It is quite relevant if one is applying the freedom of religion principle. On the other hand, the founding fathers were quite aware of homosexuality, and had no problem with banning it (usually punishable by death). Thomas Jefferson for his part, proposed castration as a suitable punishment for it (and you think DOMA is unconstitutional??)

In any event, that point aside, though the logic used by the court is usually hated by the left (because it usually works against them, for example the case of abortion which likewise was illegal in all 13 colonies/states prior and after the revolution), it could easily be applied to defend the constitutionality of actually banning gay marriages if not homosexual relationships all together. Most homosexuals do not claim a divine or religious right to practice their relevant activities, but rather merely the fact that they “feel like it” (not of course the language they would likely use).

Even more ironic is the fact that fundamentalist Mormons do not parade around demanding the right to get a state issued marriage licence for each of their marriages (which would be a very valid question). They would be quite happy to be left alone to recognize those marriages by their own private customs. Instead, they are arrested and prosecuted. It is unclear how, without an official state marriage licence (which the left and the media are arguing is an absolute must for a valid marriage) for more than one marriage at a time, they still get prosecuted for bigamy.

This means that they are getting prosecuted for having affairs, or girlfriends. If that was extended to the millions of non-Mormon “mainstream” Americans who have one wife under state law, and either mistresses, affairs or girlfriends, one could find the prison population of the US exploding. If any more irony was needed, the average American having an affair, does so in secret, likely believing it is wrong, while the Mormon fundamentalist practices it without shame, believes it to be and acts as if it were part of a wholesome family. Yet it is he (and never “her”) who can find himself behind bars.

Gays under DOMA before this Supreme Court decision, did not find themselves investigated or prosecuted, regardless of how many same sex partners they had, and regardless of whether or not they call them spouses. They in fact did not find themselves prosecuted for any reason related to their sexual preferences, nor their freedoms restricted in any way.

When laws banning homosexuality itself would be clearly constitutional (if congress or states deemed them desirable), it is shocking to understand that this Supreme Court actually thinks that simply stating that laws meant for opposite sex marriages are meant for opposite sex marriages is unconstitutional. What was passed with overwhelming majorities and bipartisan support in 1996 and signed by a very popular (and popularly re-elected) President, was done away with the flick of a pen by a few Judges eager to let everyone know that they think being gay is “ok”. Democracy usurped is to put it mildly.

This of course saves everyone the actual work, debate and legitimacy of the democratic process…to actually have congress as representatives of the people debate and change laws if today’s society so requires it. Much easier to use the left’s new leftist small majority in the Supreme Court (strengthened courtesy of Obama’s Sonia Sotomayor and Elena Kagan appointments) to do one’s bidding.

The Real Case

All the above had surprisingly little to do with the decision. Especially with the dissent. The conservative Justices realized that they had no grounds to even rule on the case, and so did not significantly delve into the issues at hand. The leftist Justices considered the fact that they had no grounds to rule on the case of little import.

The case is simple enough. Thea Spyer and Edith Windsor were married under the law of Ontario Canada in 2007, and lived in NY state. When Spyer died in 2009, she left her entire state to Windsor. Windsor tried to claim the estate tax exemption for surviving spouses but was denied. She paid $363,053 USD in estate taxes to the IRS, and sought a refund from them, which they denied (this is Obama’s IRS keep in mind).

Once refused, she filed suit (on equal protection grounds). While the suit was pending, Obama’s administration declared that it would not defend DOMA (since it finds it unconstitutional). However, it would continue to enforce it and therefore in this particular case, refused to grant Windsor the refund it believed her to be entitled to.

This in itself was an unprecedented and shocking behavior by the executive; the belief and public admission that a law was unconstitutional, along with its continued enforcement (ie to continue to break the constitution). A clear violation of of the oath office (to uphold the constitution). However, we have all heard that in Obama’s IRS, principle is one thing, giving refunds of badly needed federal taxes is quite another.

The Federal District court allowed BLAG to defend DOMA’s constitutionality since Obama’s Attorney General and Department of Justice would not. Since congress voted for the law (overwhelmingly), they had standing to defend it. The District Court ruled in Windsor’s favor and ordered the Obama administration to issue her a refund. They refused to do this, and appealed the court’s decision to the Second Circuit Court of Appeals, where of course they again refused to defend DOMA.

If this seems difficult to follow, it is most certainly strange but actually quite simple. Windsor sued the Obama administration for not giving her a refund they believed she deserves. They refused to defend the position in court, and promptly “lost”. This meaning that the court agreed with both the plaintiff and the United States government. The Obama government, then appealed the decision they agreed with to a higher court, where they again refused to oppose their “opponent’s” position which they of course publicly agreed with. To add insult to injury they continued to refuse to grant Windsor the refund they believed she was entitled to begin with, and had now been ordered by the court to provide.

The Second Circuit Court of Appeals also naturally agreed with the lower court’s decision, with the plaintiff and the defendant who all found themselves in court for unclear reasons. Again, Obama’s administration refused Windsor her refund and again appealed the decision they agreed with… finally arriving at their goal, the Supreme Court. There, it should come as no surprise, they also refused to defend DOMA, the fact that they had not given Windsor her refund or the fact they had appealed (twice) a decision they agreed with. The charade was on.

The Decision

Obviously, a circus had been played on the Judiciary system in order to raise the issue to the Supreme Court. Whether this started as rather intelligent (and illegal) conspiracy from the very beginning, or came from more typical incompetence and hypocracy; the IRS wants the money, but is afraid to be labeled bigoted, believes it is forced to appeal, but then is afraid to actively “defend” a “bigoted” position…etc etc… is an interesting question but in either case by the first or second appeal the path for the administration was very clear.

They were raising an issue they wanted the Supreme Court to decide by technically opposing the side they believed in, without actually opposing it, and so they got the benefit of not being seen as opposing it (which is the only way it could legitimately have gotten to the supreme court) while at the same time weakening the side they did not believe in (since they were technically representing it). Since the courts are a place where “cases and controversies” and real justice is supposed to be dealt with, this case made a mockery of all 3 Federal courts that went along with it. If two parties do not disagree, there is nothing for a court to entertain between them.

Two former Attorney Generals, Edwin Meese and John Ashcroft called the DOJ’s decision not defend DOMA (Section 3)

an unprecedented and ill-advised departure from over two centuries of Executive Branch practice… an extreme and unprecedented deviation from the historical norm.

The majority opinion (that sided with Obama) is itself even forced to render this week rebuke

The Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma.

The manipulation becomes overt and clear in the face of the government’s refusal to grant Windsor her refund. At the date of the Supreme Court decision, the Obama administration had still not issued the refund (unknown to me whether it has by now or not). That was the one piece of the puzzle they could not fake. Windsor seeks remedy which is her grounds for a suit, as long as she does not her refund, she can still seek remedy. If the Obama administration had issued her a refund before the first, second, or third cases it would have stopped the process. A process they were manipulating to continue.

Justice Kennedy, who authors the majority’s unprecedented and illogical opinion, makes an attempt to deal with the fact the case has no adverse parties and so should have no ruling to begin with. Though he makes some illogical analogies to attempt a reason (which Scalia’s dissent rips apart), he is forced to concede that:

Windsor’s ongoing claim for funds that the United States refuses to pay thus establishes a controversy sufficient for Article III jurisdiction. It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.

From the horse’s mouth; if Obama had given Windsor the refund it believed she was entitled to, and that he was ordered to give by two Federal Courts, then this Supreme Court decision would have never seen the light of day.

The opinion itself is convoluted, and strange. It is hard to describe in any other term than simply being driven by the fact that the Justices want to give their opinion on this “hot” issue of gay marriage. The dissents deal much more intelligently with the legal issues at hand, and at the same time accurately describe the majority opinion by criticizing it from a legal standpoint.

Chief Justice Roberts’ dissent is poignant and to the point.

I agree with JUSTICE SCALIA that this Court lacks jurisdiction to review the decisions of the courts below. On the merits of the constitutional dispute the Court decides to decide, I also agree with JUSTICE SCALIA that Congress acted constitutionally in passing the Defense of Marriage Act (DOMA). Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world.

He goes on to say that the majority see a more “sinister” motive, while the plain vanilla truth will do just fine. He differs with Scalia’s dissent that stays focused on the legal subject at hand; and realizes that not only is this decision incorrect, but it will have far reaching repercussions it did not even attempt to deal with (perhaps intentionally is the implication).

But while I disagree with the result to which the majority’s analysis leads it in this case, I think it more important to point out that its analysis leads no further. The Court does not have before it, and the logic of its opinion does not decide, the distinct question whether the States, in the exercise of their “historic and essential authority to define the marital relation,” ante, at 18, may continue to utilize the traditional definition of marriage.

The Chief Justice correctly anticipates where this issue will go from here. The banning not of gay marriage, but quite the opposite, of the legitimacy of any state, organization or person, to continue to believe in traditional marriage.

Justice Scalia’s dissent is typically witty, sharp and difficult if not impossible to oppose on its terms. Hence referencing a “raging madman” is much easier than making valid points.

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?

 

For a striking review of why the commonly held beliefs that the Supreme Court’s job is to strike down unconstitutional laws or “say what the law is” is completely false, reading the full dissent is highly recommended. Suffice to say that Scalia clearly explains why this case should have been promptly dismissed both by the Supreme Court, and the Second Circuit court before it, rather than partake in Obama’s charade. Certainly angry at the trampling of his beloved constitution, he reminds us that there other systems around the world in which the Supreme Court does reign king.

The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit

About the oddity of a case in where all parties agree, and continue to appeal he writes:

One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.

and with even greater irony:

For an even more advanced scavenger hunt, one might search the annals of Anglo-American law for another “Motion to Dismiss” like the one the United States filed in District Court: It argued that the court should agree “with Plaintiff and the United States” and “not dismiss” the complaint. (Emphasis mine.) Then, having gotten exactly what it asked for, the United States promptly appealed.

The majority was able to find one case in its history (INS vs Chada) that slightly resembled this case, only in that the executive largely agreed with the plaintiff. The precedent does not truly apply for several reasons as Scalia points out:

When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it. In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.

The majority attempts to say the United States has standing in the case and is hurt (by the loss of revenue) by a judgement against it, even if it agrees with it. It then relegates the other requirement (which is here missing) of adverseness to the status of “prudential”. Scalia wittily defines this “prudential” definition quite accurately,

“prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.

Scalia then points out how another court who wanted its voice heard on a constitutional matter was not properly before it used the exact opposite approach, and relegated standing to “prudential” status as long as there was adverseness.

Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one.

 

The majority opinion then names another couple of cases where “prudential” judgement is used by the court, also ironically in an opposite fashion. In both cases, the court uses its prudential discretion to NOT hear and rule on cases before it where adversity does exist, and not instead to hear and rule on one where it does not.

Scalia preemptively counters those that will counter that if the court requires “real cases” to be before it in order to rule on their constitutionality, many things will be left outside its review. As it should be. Congress should make laws according to the constitution, and the Executive should enforce them according to the constitution, the Supreme Court forum should be the exception and not the rule.

Obama could have chosen not to enforce the law he thought was unconstitutional. If he does believe in and enforce unconstitutional laws, then suit will naturally follow, but in a real and adversarial case. The majority opinion boldly sights Chief Justice Mashall’s

[i]t is emphatically the province and duty of the judicial department to say what the law is

The lack of sincerity is clearly seen by how out of context the line is taken. The Chief Justice’s very next sentence, as Scalia points out, was:

Those who apply the rule to particular cases, must of necessity expound and interpret that rule

It is in the forum of real cases, and before parties whose interests are either hurt or protected by rulings that a court can apply the law. Chief Justice Taney in Lord vs Veazie wrote what would more fittingly would have been applied to this case.

The objection in the case before us is…that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be. “A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible…. A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.

 

Some of the opinions in the majority and even in Justice Alito’s dissent seem to fear the President and Congress having to confront each other over the enforcement of laws if the Supreme Court does not always step in, regardless of the legality of cases. Scalia puts these fears to rest as the confrontation between congress and the executive is not only desirable, but nesesary

Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by…what do you think? Yes: a direct confrontation with the President.

An executive the ignores the law passed by congress can just as easily ignore judicial declarations from the bench. As Andrew Jackson is sometimes quoted (in response to a ruling by the Supreme Court he disliked) “John Marshall has made his decision, now let him enforce it!”

The Bottom Line

As for the matter at hand, even if a ruling was merited, the majority has little backing for its opinion other than saying (in a very round about way) that DOMA’ has a “bare…desire to harm a politically unpopular group.” Hard to imagine that was the desire of the overwhelming bipartisan majority that passed  this law in 1996, not to mention Bill Clinton’s desire (who signed into law).

As I pointed out, the constitution does not even preclude banning homosexuality entirely, much less preclude something as reasonable as DOMA. Scalia summarized that in a similar fashion:

It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.

However, beyond that, he explains that perfectly “boring” reasons are enough to find DOMA rational, for example the desire for legal uniformity across the land for federal statutes. When each state starts defining marriage differently, the one thousand plus federal statutes that contain references to marriage will easily fall into a legal chaos. There will also be legal chaos between states.  Of course the left does not fear these, because it intends to go completely the other way, and eventually ban state from NOT recognizing gay marriage.

Having said that, the Supreme Court was not asked if it likes or agrees with the law, only if it is constitutional. If a law is unpopular, congress can always repeal it or modify it, this is the process. There is nothing unconstitutional about DOMA.

The real argument against DOMA from a legal perspective is under equal protection terms, that it treats people differently based on certain requirements. The majority does not take this position anywhere since it clashes with so many other things it believes in.

Ironically, the part of DOMA that intuitively makes the most sense to people as being “unfair” is the one that has the least legal support.

That argument may be true, but mute on the face of it, at least legally.  Of course it does treat people differently, that’s what all these “special group” rules do as a default. Windsor was claiming a tax exemption; a tax that any other citizen would have to pay, but those who are married would not. A clear discrimination against single people. An even bigger discrimination against those who cannot get married for other reasons like age.

So while the average person might protest “Why would DOMA treat straight married people differently than gay married people?” the real question that extends from that is why the government would treat ANYONE differently? Or at the very least married people vs single people?

But the issue is that the US has accepted those laws wholesale. Endless precedents and legislation history have established that the Federal and State governments can encourage and discourage specific activities, even when they are not illegal. The government discourages smoking, encourages savings for retirement, encourages charity, even more questionably it often encourages certain activities by women and minorities by incentives not available to others. The last type crosses the mere”activities” arguments because no one can chose to be a woman or a minority.

The majority was not able to attack that “unfair” part of DOMA, though it would have been its strongest argument, because it flies in the face of thousands of laws and precedents they believe in. When incentives are given by the government, they are almost always given to groups the left loves to support; married couples was a rare exception. One they are trying to at least fix by making it as broad and non traditional as possible.

DOMA itself only standardizes the meaning of marriage for Federal regulations, but many of those regulations in fact are set up to encourage marriage. So while it is not illegal under federal law to be gay, nor to have a same sex marriage, DOMA was basically saying that certain incentives the federal government meant for a traditional marriage would not apply to same sex marriages. There is nothing unconstitutional with that; you may not agree with it, but there is nothing unconstitutional about it.

Just like the government chooses to encourage water conservation, good health, small business, science and research, innovation, community programs, and an endless host of other things, there is nothing stopping a government, be it federal or local, to encourage by tax incentive or another, a traditional marriage of a father and a mother.

Some would argue that the government encourages not working by welfare laws. People sometimes forget that most welfare-like benefits are entitlements citizens are entitled to unless working (or earning) disqualifies them. Some point to that as a reason to repeal those laws. The point is that government laws are full of regulations that treat citizens differently depending on what group they belong to, where they are and depending on what activities they chose or don’t chose to engage in. If the congress thinks that such behavior results in benefits (which in the case of traditional families across a society statistics show to be the case), it can encourage it with a tax incentives, much like it discourages smoking with tax dis-incentives.

So at the very heart of DOMA was a desire to say that the incentives, benefits and protections that the federal government over many years wished to give to married couples, since they are the backbone of the society, was meant for what “married couples” was always assumed to be in the US, a traditional marriage of one man and one woman.

That does not ban other lifestyles, nor repress them, it discriminates against gay marriage no more than it does on singles, but it does clarify that certain incentives were meant for certain activities. Lawmakers envision vast swaths of the US occupied by moms, dads and children as being the kind of society that has much less crime, societal ills, poverty, abuse, and much more prosperity and enduring power than one without this family unit. It doesn’t follow that this happens because some puny tax incentive, but it is an attempt to encourage. If you replace large amounts of those households with same sex couples largely without children (as math dictates), do the same benefits to society still apply?

Perhaps that is a question for the people and the governments to ponder over before they make or change new laws.. but not a question for Sotomayor, Kagan, Kennedy, Ginsburg and Brayer to answer when not even asked.

What’s Next?

Both Chief Justice Roberts and Justice Scalia see the writing on the wall, and know this is but a mere setup for what is to come. Only 10 years ago, Justice Scalia issued a similar dissent in Lawrence vs Texas, which stuck down laws making sodomy a crime. He then correctly predicted that the ruling would lead to the legal recognition of same-sex marriage. He asked people to change their laws if they so chose to, but warned that Judges must take things to their logical end.

unlike judges, need not carry things to their logical conclusion. The people may feel that their disapprobation of homosexual conduct is strong enough to disallow homosexual marriage, but not strong enough to criminalize private homosexual acts–and may legislate accordingly. The Court today pretends that it possesses a similar freedom of action, so that that we need not fear judicial imposition of homosexual marriage, as has recently occurred in Canada

The majority then too promised in their opinion that this ruling would not lead further. “Do not believe it” he wrote of the majority’s “bald, unreasoned disclaimer”. In the 2013 decision on Windsor, he is likewise prophetic:

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition.

Justice Scalia ends his opinion:

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.

I dissent.

As usual J. Antonin Scalia, I agree.

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