DOMA and Moral Equivalence

Scalia’s dissent in the DOMA decision is a must-read. While he also eviscerates the majority’s standards of review (or lack thereof), these statements speak to moral judgment implicit in the Kennedy majority. Very eloquent quotes from Scalia like these:

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl  such accusations so casually demeans this institution.

By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to  its traditional definition.

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 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 the 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 that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many.

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.  I dissent.