By John David Dyche
Just as one can be pro-choice on abortion, but think Roe v. Wade is bad constitutional law, one can be pro-gay marriage, and believe U. S. v. Windsor, the recent Supreme Court decision striking down the Defense of Marriage Act (DOMA), is incorrect.
There are right ways and wrong ways to reach desired political results. Roe and Windsor represent an "ends justify the means" jurisprudence that undermines American constitutional government. So even we supporters of marriage equality should not celebrate the Court's mistake.
As Justice Antonin Scalia said in his characteristically magnificent dissent, the Court's error springs forth from a "diseased root: an exalted conception of the role of this institution in America." The decision diminishes "the power of our people to govern themselves."
U.S. v. Windsor is misleadingly named. Because the Obama administration did not defend DOMA, both sides of the case sought the same result. Deciding the case when there was no actual controversy between the parties was the Court's first blunder.
It flowed, Scalia asserts, from the majority's hunger "to tell everyone its view of the legal question at the heart of this case, but violates a fundamental constitutional restraint on the power of judges over the people. Rendering decisions when there is not an authentic dispute between the two parties, Scalia observes, "envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere 'primary' in its role."
"This image of the Court would have been unrecognizable" to the Founders, Scalia explains. They limited the Court's power to real cases and controversies "to guard their right to self-rule against the black-robed supremacy that today's majority finds so attractive."
One expects such judicial activism from justices appointed by Democratic presidents. Indeed, their eagerness to depart from the Constitution and override decision-making by "we the people" is the reason liberals like Obama nominate them.
But it understandably infuriates conservatives when a Republican nominee like Anthony Kennedy, whom none other than Ronald Reagan appointed, issues yet another arrogant opinion that enshrines his personal preferences as national law.
Scalia rightly derides Kennedy's poorly reasoned justifications as "rootless and shifting." While Kennedy erratically invokes the rhetoric of equal protection, the opinion is actually an example of "substantive due process," an especially ephemeral standard discredited since Court conservatives used it to block New Deal legislation long ago.
Kennedy suggests that the motive for DOMA was a "desire to harm a politically unpopular group." But Scalia gives several good faith reasons for the law that "give lie to the Court's conclusion that only those with hateful hearts could have voted 'aye' on this Act."
It is this sort of rational basis that was lacking when the Court, with both Kennedy and Scalia in the majority, struck down the preclearance provisions of the Voting Rights Act of 1965. But Kennedy is an utter stranger to judicial consistency who defies all efforts at discerning a coherent philosophy for his wildly unpredictable decisions.
Rebutting Kennedy's implication that those (including Bill Clinton) who made DOMA law acted with malice "to disparage and injure same sex couples," Scalia argues that, "to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements."
In perhaps his most powerful passage, Scalia says, "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."
"It is one thing for society to elect change," Scalia adds. "It is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race."
Scalia debunks the majority's claim that Windsor is not a precursor to an upcoming Roe-like declaration of a new constitutional right of gay marriage that will prevent states, like Kentucky, from defining marriage as being between one man and one woman. The Court will then terminate the democratic processes that are already producing widespread acceptance of same sex marriage within the diversity of our federalist system.
"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," Scalia concludes. "We might have let the People decide."
God save the United States and this Honorable Court.
John David Dyche is a Louisville attorney and political commentator for WDRB.com. His e-mail is firstname.lastname@example.org.