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”

  1. George declared:
    “It is sad that my children and grandchildren will inherit a country of queers”
    ~+~
    If it is upsetting to you, why don’t you just call up your probate attorney and modify your Will? No reason to feel guilty about it, if you don’t want your heirs to inherit your princely state, just assign it to someone else. Remember, it’s your Country of Queers, who you give it to after death is your decision.

  2. My wife is presently in Arlington, VA on vacation. I remained at home. I didn’t recognize until now that she is lesbian. But I now have proof as I have learned from one of these articles here that going on vacation out of state/country without one’s spouse is the definitive sign of gayness or lesbianness or bisexualness.

    Maybe by her going to Arlington she is only bisexual because if she decided to go instead to Greece I would then know she was flamingly gay because she certainly would have visited Lesbos. And surely she had a layover in Holland with all those famous dikes there. Or so the CIA tells me.

    A guy can learn a lot here.

    1. “Maybe by her going to Arlington she is only bisexual because if she decided to go instead to Greece I would then know she was flamingly gay because she certainly would have visited Lesbos.”

      Darren,

      That is quite true since it is well known that any women visiting Lesbos are lesbians. Most males living on Lesbos are really lesbian also. The island has very deep and very old wells and the water is enchanted, so whoever drinks it becomes a Lesbian. Many a Gay woman wanting to seduce her straight friend has talked their friend into accompanying them to Lesbos and then having degenerate sex with them. I saw the proof in a movie on the “Playboy Channel”, real evidence if you ask me.

  3. MIke wrote:
    “Just as emotionally I don’t get why men get so threatened by Gay men.”
    ~+~
    It’s only because they let themselves believe there is a threat. At least one day a week I go down and have a few drinks at a bar downtown to kind of relax and unwind a bit, and it might surprise some but the place I go is a gay bar. I like this place better than the others because it is quiet on the day I go and the people there are decent and more friendly. Plus, the atmosphere is more relaxing to me and I like to visit with the bartender there who’s a pretty good guy. Sometimes my wife goes with me.

    There is nothing threatening about this place. Which is more dangerous, the gay bar with couples visiting and laughing and such, or the drunken cowboy bars where there are brawls every friday and saturday night.?

  4. Gene H.,

    “Thomas? He just does whatever the other four (particularly Scalia) tells him to do. ”

    Why don’t “you …back up your contention[] with evidence”.

  5. For evidence that John Roberts is a homosexual or at the least a bisexual, see: http://underneaththeirrobes.blogs.com/main/2005/08/more_grist_for_.html

    The photo of him in his younger college days tells all. You do not need to possess “gaydar” to recognize Roberts’ sexual predilections. It is obvious to anyone.

    Not that there’s anything wrong about Roberts’ orientation–except that he feels a need to keep it in the closet. For example, shortly after he rendered the thumbs-up for Obamacare (a Pro-Big-Government–anti-mainstream citizen decision), Roberts went on a vacation overseas. Of course, he went without his wife, and whom he spent his times with there remains a closely guarded secret that only the NSA, CIA, FBI, and others on a need-to-know basis are in the loop on.

    1. “For evidence that John Roberts is a homosexual or at the least a bisexual, see: http://underneaththeirrobes.blogs.com/main/2005/08/more_grist_for_.html

      The photo of him in his younger college days tells all. You do not need to possess “gaydar” to recognize Roberts’ sexual predilections. It is obvious to anyone.”

      Ralph,

      Always willing to give someone a chance I followed your link and read the article. The website admits it deals in gossip. Read the entire article and looked at the picture from his college days, The “evidence” they provide is all rumor and gossip that speculates for instance that he married late at age 41 and that he and his wife have adopted rather than biological children. A late marriage is proof of nothing and as far as adopted children are you aware that a high percentage of Gay men have had successful intercourse with women and can easily father children. The “picture” you refer to shows 3 handsome young males with the speculation that “some” peoples “gaydar” might conclude they were gay. The climax of the article which shows it proves nothing is:

      “To sum things up, as A3G previously stated, “Is Judge John Roberts gay? Hmm, who knows?” Unless some new and truly compelling information emerges, let’s just leave it at that. As far as A3G is concerned, the question of Judge Roberts’s possible homosexuality — like the matter of his two adopted kids — should be shoved back into the closet. ‘Nuff said!”

      Ralph you make many statements here with great confidence always asserting you have evidence to prove your positions, Your “evidence” always seems to be speculation combined with your wishful thinking. Given
      this, I would hope that you never serve on a jury, since you seem incapable of determining what is evidence and what is speculation. This example of “evidence” you provide only calls into question your credibility.

  6. And now comes the flow of straight couples showing how gay marriage has destroyed their marriages… *chirp*chirp
    … What? No crashing thunder of broken straight marriages?

    But, but, but… They said it would.

  7. pete,
    Ralph is adequate comic relief, most days. His jolting of our “degenerated, flacid brain tissues” is worth the price of admission.

  8. what, no “omg they’re going to marry their pets”? the best we can get is ralfie claiming some of the supremes are gay? (ralfie, conservapedia is a joke, not a source)

    what a bunch of lame a$$ trolls we have here.

    i’m off to foxnation to see what i can stir up. bwahahahaha

  9. It takes a blind arrogance to use the phrase “jaw-dropping” in a Supreme Court dissent.

    Scalia worries not what he says to anyone, because he is “standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions…”

    No, Scalia is not stupid, not exactly. His incredible arrogance prevents him from considering any opinions but his own.

    My strongest impession of Scalia comes from an interview video, in which he was asked how he felt about the Bush v. Gore decision. A human being might have said, “Well, I did what I thought was right, at the time.”

    Scalia said, “Get over it.” Breathtaking.

    He’s not stupid, he’s just stupid in comparison with his shining self-image. He keeps himself ignorant by virtue of his astounding arrogance.

    It’s time to repost his photo on my Facebook wall. It’s captioned, “Does this ass make my wall look fat?”

  10. Gene and OS,
    For a being an alleged Opus Dei member, Scalia has forgotten what Jesus’ message was.

  11. Darren,

    I think it’s intuitive, but I think it depends on how you define “accomplished”. The acquisition of knowledge? Power? Money? Family? Sex? Fame? I know people who have some or all of these things in their lives. Some are smart, some aren’t. I find that success in life is just as much luck and timing as it is preparation and innate skill. As my grandfather used to say, “It’s better to be lucky than good, but being lucky and good is the best.” Accomplished is no guarantee of intelligence although it can be an indicator.

  12. Darren,
    Who is to say whether one person’s accomplishments are more worthy than another? You have more integrity in your foot than some who wear those black robes have in their whole body.

    “Accomplishment” is a relative thing. There was some mention of Ty Cobb just above. He could play baseball with great skill, but he was a lousy human being, by all accounts.

  13. “That is jaw-dropping.”

    That is surely bizarre language. Do you see that sort of thing often?

    I can say “bizarre” as a simple observation because I’m not paid to get from Point A to Point B in argument/logic, or justify my position at Point B having left Point A.

  14. All the supreme court justices have accomplished more in life than I have . I don’t look at myself as stupid, and since they achieved more in life than I, how can I look at them as being stupid.

    Maybe Gene can say if this makes logical sense.

  15. One of the things that annoys me the most about Scalia is his tendency to resort to reductio ad absurdum arguments. It is as if he never understood the logical fallacy, given the number of times he uses it.

  16. No, nick. Then he surprises me by taking the principled stand instead of the political stand.

    As for the politics? You are mistaking a polemic and rhetorical tactic for politics as a whole. They are not the same thing.

  17. Except w/ those 4th amendment rulings. He’s been your guy on those of late. Then he’s a “good” jurist. And, the politics of high school is NO different than the big money politics. It’s just more money. How many people here vote for, campaign for, people because, “he’s our guy” and “the other guy is the bogey man.” One of the ways I read people is I put them back in my mind to when they were in high school. Works like a charm. You think Bubba and Obama became prez secondarily on personality. Puleeease. The great Martin Mull said “Show biz is just like middle school, only w/ a lot more money.” And show biz and politics are ugly cousins.

  18. Gene,
    I am torn as to whether Scalia, Thomas or Alito are the worst Supreme Court justices we have ever had. Scalia is smarter than the other two which makes him more dangerous. The other two are intellectual midgets compared to Scalia.

    Alito is even more openly partisan than the other two. What judge rolls their eyes at the ceiling when a colleague reads a dissent or the President speaks? That is the kind of thing you see a litigant in a cheesy divorce case do, not a judge. Alito the drama queen.

    As for Thomas, it is a tossup as to whether he is lazy or not very bright. I am thinking more along the lines of just occupying a chair.

  19. And all of those people were/are actually great.

    Scalia is not a great jurist by objective standards and it has shit to do with his personality, nick.

    Cordial doesn’t mean he’s a good jurist.

    As I said, you like him. Many, if not most, in the profession don’t like him and it has everything to do with his work first and foremost. That you choose to like him? Is your choice. But that the criticism of him is considerably more substantive than “he’s a dick”? That might ought to tell you something.

    Also, if you think a “big part of politics is, ‘We like/hate this person’, then I suggest your understanding of politics is superficial. That may be a fair description of politics in high school or kindergarten, but in the real grown up corporate and government world, politics is about far, far more than personality. It’s about agendas and real pols will work with a guy who was their enemy in the morning if it gets them what they want to further their agenda in the afternoon. Personality is, at best, a secondary matter and usually not relevant at all. If you get to do in someone you don’t like? It’s gravy. If you get to help someone you like? It’s gravy. But getting what your agenda demands? That’s the meat.

    That’s how that game is played.

    And based on his work product as a jurist? Scalia is more than a bit ripe. Something a sauce isn’t going to cover. He’s got one of the few jobs where all personal agendas are to be set aside in favor of the analytical framework of legal doctrine, precedent and law that ultimately must conform to the Constitution without destroying it in the process. His politics need to end where the robe begins.

    Scalia fails at all of that.

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