Justice Anthony Kennedy, writing for the majority in U.S. v. Windsor, which declared the Defense of Marriage Act (DOMA) unconstitutional, based the decision on what he claimed was in the minds of those who oppose same-sex marriage: their bigotry, their "animus" against gays. Kennedy tried to brand those who oppose same-sex marriage as a hate group, putting them in a category similar to those who irrationally discriminate against various minorities.
Justice Antonin Scalia, joined in his dissent by Justice Clarence Thomas, made clear that the Supreme Court had "no power to decide this case," that "this case is about the power of our people to govern themselves" and that the Court's errors come from "the same diseased root: an exalted conception of the role of this institution in America."
Scalia wrote that Kennedy's marriage decision was a "jaw-dropping ... 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 everywhere 'primary' in its role."
Since Kennedy couldn't show any authority for deciding this case, Justice Scalia wrote that Justice Kennedy resorted to "nonspecific hand-waving" and the accusations that the congressional authors of DOMA were motivated by a "bare ... desire to harm a politically unpopular group," and that "only those with hateful hearts could have voted 'aye' on this Act."
Kennedy's decision launched a torrent of accusations. According to Kennedy, the supporters of DOMA acted with malice -- with the "purpose ... to disparage and to injure" same-sex couples, to "demean," to "impose inequality," "to impose ... a stigma," to deny people "equal dignity," to brand gay people as "unworthy," which supposedly "humiliates" their children.
Scalia and Thomas concluded in their dissent: "We might have let the People decide." But the supremacist justices didn't. "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."
It is wrong, unprecedented and insulting to the American people for Supreme Court Justices to accuse those who defend traditional marriage as being motivated by such hate. Americans certainly do not want to be ruled by a Supreme Court that Abraham Lincoln famously denounced as "that eminent tribunal."
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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