A Modest Step Forward For Gay Marriage

The Supreme Court’s opinions reveal why the debate is far from over


It didn’t take long for the U.S. Supreme Court’s historic decision affirming same-sex marriage to be dismissed as “legalistic argle-bargle.” It took Justice Antonin Scalia only 22 pages, in fact.

The court’s 5-4 decision in the case striking down the federal Defense of Marriage Act, written by Justice Anthony Kennedy, reduced Scalia to fits of italicized rage. His remarkable dissent both illuminates some of the flaws in the court’s decision and shows how the debate over same-sex marriage is far from over.

The first half is a sarcastic yet principled complaint that the court should not have taken the case of U.S. v. Windsor in the first place, since both the U.S. (in the form of the U.S. Department of Justice) and Windsor (as in Edith Windsor, a married lesbian who won her suit against the U.S. over a tax she wouldn’t have had to pay if her spouse were a man) “agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well.” Scalia asks: “What, then, are we doing here?”

He’s just warming up. Once he wades into the merits of the case, besides making complex legal arguments about argle-bargle (if you don’t have your copy of the O.E.D. handy: “disputatious argument, bandying of words, wrangling”), he mostly disputes the majority’s characterization of his view. He and his fellow foes of same-sex marriage are not “unhinged members of a wild-eyed lynch mob.” They are not “enemies of the human race.” He resents having to listen to “a lecture on how superior the majority’s moral judgment” is.

Thus does Scalia almost perfectly capture two strains of the argument commonly made by same-sex marriage opponents: One, why are you forcing this issue on me? And two, why do you assume that I am a bigot?

On the first count, he may have a point, albeit a legalistic one. And he’s consistent: He joined the court’s other decision about same-sex marriage, in which it declined to rule on the constitutionality of California’s Proposition 8, which bans same-sex marriage. A federal judge had already overruled the ban, so in effect the court’s ruling allows same-sex marriages to proceed in California.

Scalia’s larger worry, if that’s the correct term, is that the court’s rulings will result in “a judicial distortion of our society’s debate over marriages.” It’s a cousin to the argument Justice Ruth Bader Ginsburg made about Roe v. Wade: That the 1973 decision legalizing abortion “moved too far, too fast.”

Yet one could just as easily argue that Kennedy’s opinion does not go far enough. If gays deserve the right to marry, why should that right be restricted to only 12 states plus the District of Columbia? The answer, of course, is that the politics of civil rights are messy, and progress is not always linear. The same applies to judicial logic. As the debate about same-sex marriage proceeds, all sides would do well to remember that.


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