A Roe by any Other Name

Posted: Jun 28, 2013 12:01 AM

Many commentators on United States v. Windsor have offered the view that the decision was not far-reaching, that it didn't enshrine same-sex marriage as a constitutional right and that therefore the struggle continues.

Don't believe it for a minute. The contest is over. Windsor is a stealth Roe. It showed that five justices regard the arguments in behalf of traditional marriage to be nothing more than bigotry. It also revealed that those five will not be constrained by law or tradition from imposing their views on the nation at the next opportunity.

Chief Justice Roberts attempted to limit the damage, observing in dissent that 1) he believed that the court lacked jurisdiction, and 2) that the majority's rationale, based (loosely) as it was on federalism principles would cut the other way when state laws upholding traditional marriage are challenged. Roberts admonished that the court's majority opinion did not resolve the question of state definitions of marriage and should not be interpreted as such.

Nice try.

Scalia went after the jurisdictional question with his customary laser. So "hungry" were the five members of the majority to pontificate about the merits of same-sex marriage, he wrote, that they blithely skipped over "a technicality of little interest to anyone except the people of We the People" -- namely that there was no case or controversy for the high court to resolve in Windsor. The "United States" of the case's title agreed with the result at the appeals court and district court levels, which were both in Windsor's favor. The plaintiff had long since been made whole. "So what," Scalia asked, "are we doing here?"

The majority was showboating its enlightenment, that's what. As Justice Alito observed, there is no constitutional resolution to the same-sex marriage debate. Unlike other liberties found by the Court to inhere in the Due Process clause, it cannot conceivably be described as a "fundamental right deeply rooted in this nation's history and tradition." It belongs, accordingly, with the people and their elected representatives.

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.