Justice Scalia’s DOMA Dissent: Annotated

Justice Scalia wrote the primary dissenting opinion in the DOMA case the Supreme Court decided on Wednesday. That is appropriate. Justice Scalia is the king of the dissenting opinion. He has actually won SCOTUS’s award for Best Dissenting Opinion[1] in all but one year since he joined the Court. The one exception was in 2010, when the 90-year-old Justice Stevens unexpectedly stole the award days before his retirement for his epic dissent in the Citizens United case.

In DOMA, Scalia has given us yet another gem. The actual text of his dissent is below (in italics), along with my annotations (in standard text).[2]

There are many remarkable things about the majority’s merits holding.

This is vintage Scalia. You know fireworks are coming when he starts an argument with a sentence like this.

The first is how rootless and shifting its justifications are.

See?

For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is?

I’ll bet he’s going to tell us.

Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. What to make of this?

You know he’s going to tell us eventually.

The opinion never explains.

Just tell us already!

My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its 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). But I am only guessing.

Ahhhhh. Scalia thinks that the majority spent seven pages talking about federalism just to fool the American people. According to Scalia, the majority wrote an opinion which, in the future, can be relied on to justify creating a fundamental right to same-sex marriage, but the majority doesn’t want anybody to realize that’s what they’re doing, so they are confusing everyone with a random discussion about federalism. Please continue, Justice Scalia. I am intrigued…

Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Near the end of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and preserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.

First of all, Scalia is just throwing rhetorical questions into this dissent at an unprecedented pace. Second of all, I’m not sure a judge is allowed to ask a rhetorical question in the middle of a quote. Third of all, how am I supposed to think for myself if Scalia keeps answering his own rhetorical questions?

But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling, Moreno, and Romer—all of which are equal protection cases.

Uh oh. Scalia senses the majority hiding something again.

And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of Lawrence (not an equal-protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples. Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below. I would review this classification only for its rationality. As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework.

So, if the Court is not relying on the Equal Protection Clause, what is it relying on?

The majority opinion need not get into the strict-vs.rational-basis scrutiny question, and need not justify its holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,”

Uh no.

that it violates “basic due process” principles;

Scalia’s about to drop the SDP bomb.

and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment.”

Duck and cover!

The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what those statements mean.

BOOM! There it is! Substantive due process. There is nothing in this world that Scalia hates more than substantive due process. Scalia likes reading about substantive due process about as much as Cavs fans enjoy reading about Lebron winning another ring.

Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “ordered liberty.”

Scalia hates substantive due process. Why is he explaining how it works?

Some might conclude that this loaf could have used a while longer in the oven.

Excuse me?

But that would be wrong; it is already overcooked.

Did anybody see a bread metaphor coming here? [scratching head] So, the bread is the case? And the oven is the court system? The bread should have been taken out of the oven sooner because then gay people wouldn’t want to marry each other? I’m confused.

The most expert care in preparation cannot redeem a bad recipe.

WE’RE STILL ON THE BREAD METAPHOR?!?!

The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “ ‘bare . . . desire to harm’ ” couples in same-sex marriages. It is this proposition with which I will therefore engage.

Scalia hasn’t engaged yet? What has he been doing for the past 1200 words? Was all of that just a bread recipe?

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. I will not swell the U. S. Reports with restatements of that point.

Only with bread metaphors.[3]

It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol. However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act.

Notice how Scalia just slips this in here. I’m not so sure that the majority argued that “only those with hateful hearts could have voted ‘aye’ on this Act,” but Scalia will come back to this many times.

And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.

This would not be a Scalia dissent without him accusing the majority of declaring open season on something. He must be a hunter.

The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Bear in mind that the object of this condemnation is not the legislature of some once Confederate Southern state (familiar objects of the Court’s scorn), but our respected coordinate branches, the Congress and Presidency of the United States.

Notice how Scalia talks about how the “Presidency of the United States” should be respected. I doubt he has much respect for either Clinton or Obama. So, he’s careful to avoid demanding respect for the “President.”

Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.

“Unhinged members of a wild-eyed lynch mob.” Look, I think Justice Scalia is incredibly smart. But that sentence is not one that has any place in a reasoned legal argument about a massively important constitutional issue. This is not a legal argument. It is a rant. And even if there may be some merit to what Scalia is saying, it’s difficult to distinguish the meritorious points from the insults he keeps hurling at the majority.

To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. Imagine a pair of women who marry in Albany and then move to Alabama,

Who said alliteration has no place in judicial opinions?

which does not “recognize as valid any marriage of parties of the same sex.” When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.

See? That is a legitimate, sound legal argument. But I’ll bet your eyes glazed over while reading it because you were so used to reading about lynch mob accusations and bread metaphors.[4]

The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” to “impose inequality,” to “impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliat[e]” their children. I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. 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.

[Rereading that last sentence.] So, it is roughly the same to condemn, demean, or humiliate a homosexual as it is to condemn, demean, or humiliate, say, the Mexican Constitution. I’m not really sure the Mexican Constitution is capable of feeling humiliated. I’m no psychologist, but my guess is that the psychological impact on a gay minority that is condemned by a straight majority is more significant than the psychological impact on the Mexican Constitution when it is demeaned by its political opponents. I’ll bet same-sex couples have a more difficult time explaining to their children why they, as people, are condemned to second-class citizen status than the Mexican Constitution has of explaining criticism to its children. But I digress…

To hurl such accusations so casually demeans this institution.

Scalia, how many times do we have to go over this? You lost your right to play this card when you signed Bush v. Gore.

In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement.

So, if you are reading this dissent looking for reasoned disagreement, you’ve come to the wrong place!

To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; 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.

If there is one thing lawyers love doing, it is throwing obscure latin phrases around.

The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.”

Something tells me that Scalia is not going to take the majority at its word.

I have heard such “bald, unreasoned disclaimer[s]” before.

I’m thinking Scalia might have some trust issues.

When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,”—with an accompanying citation of Lawrence.

Scalia must still be haunted by the ghosts of Lawrence (ghosts which, in Scalia’s mind, run around “sodomizing” each other willy-nilly).

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.

I’m pretty sure the Court could have “gotten away with” finding a fundamental right to same-sex marriage in Perry. So, I’m not really sure what Scalia thinks the Court is waiting for.

In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion.

Apparently, Scalia thinks he can accurately predict what Kennedy will do in future opinions. If so, he’s pretty much the only one.

As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “ ‘bare . . . desire to harm’ ” couples in same-sex marriages.

Here we see yet another legal term that is not commonly taught in law school: “argle-bargle.”

In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. 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 clearly means all of this as a criticism of the majority’s logic. But, ironically, nothing in Windsor could make same-sex marriage supporters more optimistic than Scalia’s certainty that the “the other shoe” (a right to same-sex marriage in all 50 states) will drop soon.

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. Henceforth those challengers will lead with this Court’s declaration that there is “no legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.

But don’t courts distort the debate over same-sex marriage either way? If courts were to say that same-sex individuals have no rights at all, that would factor into the debate. Any position, even no position, taken by the Supreme Court on LGBTQ rights, factors into the debate somehow.

As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.

This is Scalia in all his glory. It has everything: thinly veiled scorn, aggrandizing rhetoric about the Framers, a metaphor involving a pawn shop, and an implication that if liberals get their way our entire system of government is at risk.

Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some are offset by victories in other places for others. 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.

Here we have a good example of Scalia’s patented “disappointed mother” approach. “Doing the right thing was just too hard for the majority. Too bad. If only my son loved me more, maybe he would call me once in a while. Oh well. I’ll just sit at home and look at old baby pictures.”

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.

“I might have had a son who loves me. I might have had a son who respects and cherishes his mother. Too bad.”

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.

Slow clap? Justice Scalia is the Lebron James of the Supreme Court. Most people either love him or hate him, but even those who hate him have to respect his talents (which he is probably taking down to South Beach for the Court’s summer recess, starting this weekend).


[1] Which I just made up.

[2] The text of the dissent is lightly edited, mainly to remove citations. The official version of the dissent is attached to the opinion itself, which can be found here.

[3] Okay, I’m done with the bread thing now. I promise.

[4] Seriously, that’s the last one, I’m done with the bread references now.

This entry was posted in law, same-sex marriage, supreme court and tagged , , , , , . Bookmark the permalink.

6 Responses to Justice Scalia’s DOMA Dissent: Annotated

  1. demark! says:

    (Slow clap)…brilliant Andy. I laughed my bread off. (That’s a mixed metaphor of butt + head). I hope you’re planning to use this post as part of your writing sample in your job application to SCOTUSBlog. They’d be lucky to have you on staff when the other shoe falls.

  2. villagebear says:

  3. Pingback: Five Things the Supreme Court Could Learn From the NBA—Part 2 | more than twenty cents

  4. Pingback: A Dose of SCOTUS Holiday Cheer: Oral Argument Annotated—Part II | more than twenty cents

  5. Pingback: The Supreme Court’s Michigan Affirmative Action Decision: Part II of our Coffee House Conversation | more than twenty cents

  6. Pingback: Is Same-Sex Marriage Unbeatable in Court? | more than twenty cents

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s