“DOMA violates the basic due process and equal protection principles applicable to the federal government,” the majority held in the 5-4 ruling delivered by swing Justice Anthony Kennedy, joined by the liberal wing of Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.
Seeking to address concerns about what comes next, the decision concluded: “This opinion and its holding are confined to those lawful marriages,” referring to “same-sex marriages made lawful by the state.”
But is it really? Not in the opinion of Justice Antonin Scalia who delivered a lengthy, stinging dissent. His view should carry weight because a decade ago he accurately predicted this week’s sequel to the Supreme Court’s decision in Lawrence v. Texas invalidating state bans on sodomy. Ironically, Wednesday’s same-sex marriage ruling came on the 10th anniversary of the Lawrence decision.
In his dissent in Lawrence v. Texas, Scalia had said: “At the end of its opinion — after having laid waste the foundations of our rational-basis jurisprudence — the courts says that the present case ‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’ Do not believe it …. This case ‘does not involve’ the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.”
And indeed, Wednesday’s majority decision cites Lawrence’s finding that “moral and sexual choices” of same-sex couples are protected by the Constitution. Scalia in his dissent to the new ruling referred to the majority’s “pretense that today’s prohibition of laws excluding same-sex marriage is confined to the federal government (leaving the second, state-law shoe to be dropped later, maybe next term).”
Scalia wrote: “It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: the only thing that will ‘confine’ the court’s holding is its sense of what it can get away with.”
And he said, “the view that this court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion.” The “real rationale” of the opinion, he said, “is that DOMA is motivated by ‘bare … desire to harm’ couples in same-sex marriages.” Then: “How easy it is, indeed, how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.”
“As far as this court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe,” Scalia said.
The fact is that courts follow precedents — and the Supreme Court has just set another one.