But the majority will have none of that. Gone is the usual deference that the court offers to the other branches of government. Rather than evaluating whether there was a "rational basis" for the law -- a traditional test in cases involving the Due Process and Equal Protection clauses of the Constitution -- Justice Kennedy's majority opinion completely ignored the many valid reasons Congress might have had for enacting the law. Instead, Kennedy threw insults at the 342 members of Congress, 85 senators, and the president who enacted the law. Their motive, he wrote was a "bare ... desire to harm a politically unpopular group." The law inflicted "injury and indignity." It was intended to "injure the same class the State seeks to protect." The "principal purpose and the necessary effect of this law are to demean." "The avowed purpose and practical effect of the law here in question 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."
The implications of this judicial bullying and name-calling are only too obvious. The five members of the majority wish to associate themselves with fashionable opinion and will no doubt be guided by that vanity (rather than by law) when the next opportunity arises to reverse democratically enacted policies they dislike. Sheepishness about contradicting their federalism argument is unlikely to constrain the next "correct" judgment.
The inflammatory language of this opinion will also echo through the coming debates about charitable status, government contracts, licenses and accreditation. The Supreme Court has decreed that there is no possible rationale beyond hatefulness to oppose changing the ancient institution of marriage. This sets the stage for nearly all religious institutions to be considered agents of bigotry.
As many in the pro-marriage coalition have been arguing for two decades, the case for traditional marriage is not about hostility to homosexuality. It's about staunching the decay of the institution that undergirds everything else in our society. To enshrine same sex marriage is to endorse the idea of marriage as adult fulfillment.
Marriage is much more than that. But the argument will have to continue outside the legislatures and the courts -- because five members of the Supreme Court have taken our power, our franchise and our sovereignty from us.