Justice Scalia was scathing in describing the failure of the Court to identify any basis in the Constitution for its conclusion that DOMA is unconstitutional. Scalia criticized Justice Kennedy's "nonspecific hand-waving" about equal protection, substantive due process and federalism but appeared to say that the principal basis for Congress enacting DOMA was its supporters' "desire to harm a politically unpopular group."
Speaking for the court's majority, Justice Kennedy accused DOMA supporters of acting with malice, with the purpose "to disparage and to injure" same-sex couples, to "impose ... a stigma," to deny them "equal dignity," to brand them as "unworthy" and to "humiliate" their children. All of this is obviously false.
Scalia expressed shock about the way Kennedy bolstered his argument with malicious slurs on the Members of Congress who voted for DOMA. As summed up by Scalia, Kennedy laid down his edict. "Hate your neighbor or come along with us," and that kind of insulting argument should be out of bounds for the Supreme Court.
These two decisions about marriage by a divided Supreme Court do not end the debate about whether America must or will accept same-sex marriage. As one of the same-sex-marriage advocates boasted, let the litigation begin.
It's easy to see dozens of lawsuits coming down the pike to address questions the Supremes did not answer. For example, must a state that forbids same-sex marriage recognize the marriage of a couple that gets married in a state where that is legal?
Let's recall how Abe Lincoln responded in his First Inaugural Address to the Supreme Court's historic mistake, the Dred Scott decision. The court had ruled that a man must be protected in his alleged constitutional property right of owning his slave, Dred Scott, even when they traveled to Illinois, a free state.
Lincoln said that the court's erroneous decision should be limited to that particular case and never allowed to become a precedent for other cases, with the hope that it may one day be overruled. Then Lincoln warned that if we allow policy on vital questions to be irrevocably fixed by the Supreme Court, we will no longer be a self-governing people but merely subject to "that eminent tribunal."
As Scalia said about the court's decisions, "We might have let the People decide." But the Supreme Court justices acted like supremacists who used their power to dictate public policy, overturn what has been our marriage law for centuries, and insult anyone who disagrees.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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