Supreme Court Strikes Down DOMA

The U.S. Supreme Court
The U.S. Supreme Court
As many of us predicted, Justice Anthony Kennedy supplied the fifth vote today to strike down the Defense of Marriage Act (DOMA).  I just returned from offering legal analysis in front of the Supreme Court (and roasting in the DC summer weather with CNN).  I will be discussing the case tonight with BBC.  The surprise was not in the outcome or the split but the scope of the decision.  Kennedy could have rendered the same decision on a narrower basis but chose to render a more expansive endorsement of the constitutional protections for gay couples.  These are marriages, plain and simple, and cannot be simply discharged by Congress. Kennedy wrote: “DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty.”

As I discussed on CNN, I was most struck by the more small minority of justices on the Court that view such laws as justified on morality grounds. That view is now argued almost exclusively by Justice Scalia and Justice Thomas.

Kennedy’s decision is a sweeping victory for the equal protection of couples regardless of gender. He writes:

By creating two contradictory marriage regimes within the same State, DOMAforces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of statesanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriagesare 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, see Lawrence, 539 U. S. 558, and whose relationship the Statehas sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

Scalia was equally passionate. Indeed, when Jake Tapper noted on the air with me that he hasn’t seen a dissenting opinion with this type of heated language, I almost added “since the last Scalia dissent.” Scalia was at his signature best of venting his anger:

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congressand the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and every- where “primary” in its role.

The Proposition 8 decision was a win by default for the couples on standing grounds. However, it effectively kills everything on the docket after the district court order. That leaves the state open again for gay marriages.

Here is the decision in Windsor: 12-307_g2bh

Here is the decision in Hollingsworth: 12-144_8ok0

142 thoughts on “Supreme Court Strikes Down DOMA”


    Speaking of pools, would I get the soles of my feet wet, if I walked through the waters of your mind?

    BTW, we’re all just dying to know. Which imperialist adventure did you participate in?

    There has been no declared “war” since 1945.

    Are you of the opinion that only those who make a career in the military should be allowed to venture opinions???

    Didja know that our Foundering Father, Thomas Jefferson, never served in the military? Despite his famous quote,

    “The tree of liberty must from time to time be refreshed with the blood of patriots and tyrants. It is its natural manure,”

    he never shed a drop of his own blood.

    I have nothing against those who spend time in the military. Unless they try denigrating those who don’t.

  2. To Gene;
    Maybe Penicillin might be needed if I contracted a typical STD, but what anti Aids
    Cocktail will you be needing? It seems you come from a very shallow end of the gene pool…

    BTW, have you served in anything other than yourself???

  3. So, Santorum erupted and ruined everything for women, even back them?

    1. Bob,

      The only thing Santorum has erupted into lately is his hand. I mean that both in realty and metaphorically.


      I was taught that by the Professor on Rocky and Bullwinkle. So that’s history, not silliness. I’m only silly when I breathe.

  4. Now you’re just being silly, Mike.

    Everyone knows some of the barebreasted Creatan women fled to what would eventually be known as the Côte d’Azur.

  5. Mike & Gene:

    There is a convergence going on here. Mike, did you use that sub-cretin decoder ring to translate Linear C? The inventor of that ring must have been an expert in gay pornography to have made such a device. Could the ring be a Rosetta Stone humanity needed to translate that lost language, or is this another consipiracy?

    My wife is the grandaughter of a Greek epigrapher. Too bad he didn’t have the sub-cretin decoder ring, it would have been very useful in his studies. The stars must be aligned on the Turley Blog, many important historical discoveries happen here often.

    1. Darren,

      Not only is this a historic convergence, it is a harmonic one as well. Linear C was decoded by that great Cretanologist Professor Engorgus Phallus, who while exploring a deep cave under the town of Knossos, Crete found a huge many sided ring on the horn of a huge bull skeleton. That ring was the sub-cretin decoder ring, with its four sides covered with the same phrase written in four languages. Linear A, Linear B, what became Linear C and Sumerian. Since the first two Linears and Sumerian writing were already known and the phrase translated was the same in the other 3 languages, thus Linear C was translated. The phrase was: “Judge not lest you be judged Rolpha”. Rolpha was the Cretan king who had a shorter reign than Pippin the Short, was stoned to death after he decreed that the missionary position was the only accepted one for Cretans. Since Crete at the time was a polymorphous perverse culture they revolted and battled the Kings six loyal supporters. The supporters called themselves the Cretins and pledged their loyalty to King Rolpha. They battled for a long and hard three minutes but were finally overcome by the Band of Amazons hired by the revolutionaries who, were too busy at their orgies to do battle. They did enjoy stoning Rolpha though and cried out in unison “Rolpha what you adono good”, The new king, the first of many king Minos proclaimed the missionary position outlawed and the people cheered. Crete lived happily ever after, bouyed by their barebreasted women until Santorini erupted and those women that lived fled to what was left of Santorini.

  6. Gene,
    Yes! I got my subcretin secret decoder ring on Wednesday!
    Oh…that’s not very secret, is it? My bad.

    I had some difficulty unpackaging it, as the decoder ring was under a cretin, who was uncooperative.

    My decoder spins, clicks, exults extemporaneously, and flashes merrily, whenever I read this blog. It decodes subcretin into !Xóõ, unfortunately, of which I have no understanding.

    I’m still at a loss to determine what Ralph’s talking about.

    Hubert and Ralph,

    I hope that you can console yourself, regarding the DOMA decision, by realizing that there are other fish in the sea.

    You’ve merely hit a bump in the road, in your effort to persecute and subjugate others. There are so many other groups to persecute, and other issues, in which to be cruel.

    Your whole life remains ahead of you.

  7. Ralph,

    I’m certain a mirror is a mirror. But don’t feel too bad about me not getting my ring yet. Fortunately for you, I understand fluent gibberish which accomplishes the same goal in translating your arguments (such as they are).

  8. Gene, I’m sure in your case you already have a “subcretin decoder.” It’s called a mirror.

  9. Ralph:

    Are you having a stroke or just showing your contempt?

    If you are having a stroke call 911 now. Carry on otherwise, I cant help.

  10. Bob K.,

    Have you gotten your subcretin secret decoder ring yet? I’m still waiting for mine in the mail.

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