Wednesday’s historic Supreme Court decision invalidating the key part of the Defense of Marriage Act, which defines marriage as being between a man and a woman, has likely set the stage for a series of arguments in the state houses over the issue. The majority opinion in the United States v. Windsor, written by Anthony Kennedy, essentially says that the Defense of Marriage Act for no good reason allowed the federal government to stick its nose into a state issue, the affairs of family, to single out one group and injure a class of people that one of those states, New York in this case, sought to protect. As he put it:
“DOMA’s avowed purpose and practical effect are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”
Look at the decision on California’s gay marriage ban handed down the same day. In that ruling the court decided not to take up an appeal on California’s law, but this was an issue of standing, not the constitutionality of criminalizing gay nuptials. The state of California had refused to defend the law any longer, and the gay marriage opponents who appealed had no direct stake in that appeal, so legally the Supreme Court didn’t have to argue the substance before it simply passed the hot potato right into the garbage. (The majority opinion in that vote offered an interesting Red Rover game in which Roberts stood alongside justices Ruth Bader Ginsburg and Elena Kagan against Sam Alito and Sonia Sotomayor, crews as motley as one could imagine.) The decision in Windsor also found an executive branch–Barack Obama’s–unwilling to fight for the DOMA, so a party directed by Congress had to get involved.
Of course, the standing issue is important to this argument for myriad reasons. Standing means that a plaintiff must have been directly harmed or have some connection to the harm caused by a law. In the case of gay marriage opponents, that applies … um … never. As I’ve joked here before, gay marriage does no harm whatsoever to straight people other than directly offend what must be their smutty imaginations. That fallacy was again voiced relentlessly today as religious conservatives again said that allowing gays to freely marry somehow deprived them of freedom. I guess because the act contradicts what they believe, it is a form of mind control. I’m stretching there, but it’s hard to make sense out of such a brutally senseless argument.
But as glib as I’d like to be that questionable legal representation produced a happy effect, Emily Bazelon at Slate, among others, asks a fair question: Is it right that the will of California voters was subverted in this case because their state government refused to fight for a law they passed? Would our joy at seeing gay haters’ asses handed to them on an issue of standing be so funny if this were, say, a water pollution issue that our state refused to fight?
But I don’t wish to be ambiguous. I’m happy for the decision today, that five of the Supreme Court justices called the Defense of Marriage Act what it was–malice against a group of people. A law that disapproved of a class of people one state, New York, was trying to invest with some status and integrity.
You can, of course, read Justice Antonin Scalia’s whining dissent, filigreed with such thumb-sucking lines inveighing against the “black-robed supremacy” of a court gone out of control. It is more tired rhetoric about judicial activism, something Scalia, whose willingness to become activist in defense of conservative causes, ought to be too embarrassed to keep saying out loud by now. Then there are predictable screeds by National Review editors who try to subvert the logic of tolerance by saying gay marriage proponents are somehow full of contempt. See what pretzel logic man Rich Lowry did there? I’m not the one hating the people I hate. It must be something they are doing. The people I hate must be causing it somehow.
That attitude was institutionalized by the DOMA. That attitude spawned a law of the land. That attitude was why the law came crashing down under its own weight.