In United States v. Windsor, the Supreme Court yesterday ruled that the federal Defense of Marriage Act, which bans gay marriage, is unconstitutional.
An excerpt from the majority opinion by Justice Anthony Kennedy:
Until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.
That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight . . . The limitation of lawful marriage to heterosexual couples . . . came to be seen in New York and certain other States as an unjust exclusion . . .
The State’s decision to give this class of [same-sex] persons the right to marry conferred upon them a dignity and status of immense import . . . This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity . . . equal with all other marriages. It reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.
DOMA seeks to injure the very class New York seeks to protect . . . The principal purpose is to impose inequality . . . DOMA undermines both the public and private significance of state-sanctioned same-sex marriage; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition.
This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects . . . and it humiliates tens of thousands of children now being raised by same-sex couples.
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From the dissent by Justice Antonin Scalia:
The majority says the supporters of this Act acted with malice — with the “purpose” to “disparage and to injure same-sex couples.” . . . But to defend traditional marriage is not to condemn, demean or humiliate those who would prefer other arrangements . . . To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean” and “humiliate” our fellow human beings who are homosexual . . .
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad.
A reminder that the disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution, We might have let the People decide . . .
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.
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From the dissent of Justice Samuel Alito, which was partially joined by Justice Thomas:
What [is sought here] is not the protection of a deeply rooted right but the recognition of a very new right, and they seek this innovation not from a legislative body elected by the people but from unelected judges. Faced with such a request, judges have cause for both caution and humility . . .
In Hollingsworth v. Perry, the Court ruled that the plaintiffs defending California’s Proposition 8 did not have legal standing to do so.
From the majority opinion by Chief Justice John Roberts:
No matter its reasons, the fact that a State thinks a private party should have standing to seek relief for a generalized grievance cannot override our settled law to the contrary. . . . States cannot alter that role simply by issuing to private parties who otherwise lack standing a ticket to the federal courthouse.
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From the dissent by Justice Anthony Kennedy:
In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government . . . The Court today frustrates that choice . . .