Justice Scalia Blasts Majority in DOMA Case, While Defending Antigay Law

June 26, 2013

by Jeremy Leaming

Beyond providing victory for equality, today’s Supreme Court opinion striking an integral provision of the so-called Defense of Marriage Act sent Justice Antonin Scalia into a fitful and contradictory rage.

Though Scalia joined the majority opinion of Shelby County v. Holder, which invalidated a congressional action, usurping Congress’ constitutional authority to enforce the 14th and 15th Amendments, today he railed against the majority for invalidating Sec. 3 of DOMA, which unlike the Voting Rights Act, worked to discriminate against a certain group of people -- lesbians and gay men. So yesterday, Scalia joined his right-wing colleagues in gutting a landmark federal law aimed at preventing discrimination, while today he lodged an over-the-top dissent against striking down a provision of a blatantly discriminatory federal law. And he did so, as TPM’s Sahil Kapur notes, in fiery fashion – rather like he did in dissenting in Lawrence v. Texas issued 10 years ago today invalidating a state law discriminating against lesbians and gay men.

According to Scalia, the majority in U.S. v. Windsor led by Justice Anthony Kennedy provided a “jaw-dropping” expansion of judicial review. “It is an assertion of judicial supremacy over the people’s Representatives in Congress and 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,” Scalia fumed.

He didn’t stop there, adding the Constitution’s framers would not recognize the “black-robed supremacy that today’s majority finds so attractive.”

Scalia, after grousing at great length, that the majority should not have decided the case, went on to provide his “view of the merits.”

And his views on lesbians and gay men and laws that discriminate against them have not moved in 10 years.

“As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms,” noting his dissent in Lawrence. “I will not swell the U.S. Reports with restatements on that point. It is enough to say 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.”

In the majority opinion, Kennedy said DOMA “writes inequality into the entire United States Code,” that its “principle effect is to identify a subset of state-sanctioned marriages and make them unequal,” and that DOMA degrades and demeans “the equal protection guarantees of the Fourteenth Amendment ….”  

Scalia took great issue with Kennedy’s description of the discriminatory law, saying that to “hurl such accusations so casually demeans this institution.”

Yesterday, Scalia joined his conservative colleagues to seriously weaken, if not gut, one of the nation’s greatest civil rights laws reauthorized numerous times by Congress and challenged by Alabama officials in a county with a track record of trying to dilute the minority vote. Many are likely not surprised by how Scalia voted today. The justice’s invective aimed at the majority in Windsor and in defense of an ignoble law, regardless of how small it makes the high court look, is also not shocking.