Defense of Marriage Act

As most are probably aware, the Supreme Court declared that the Defense of Marriage Act’s definition of marriage is unconstitutional.  I believe this result was the inevitable conclusion of past decisions about the rights of homosexuals and correctly decided. I find two interesting additional points from the decisions.  One is that the court is clearly moving away from its framework for due process review based on rational basis| Strict Scrutiny| intermediate scrutiny.  I believe the court has been erasing the lines between these classifications for years and is right to do so. Second, the majority spoke with a clear voice, but there was clearly dissension among the dissenters. The three dissents spent much of their time attacking the opinions of the other dissenters. This is not surprising, Scalia’s usual vile tone must hurt some feelings.


3 thoughts on “Defense of Marriage Act

  1. “Scalia’s vile tone must have hurt some feelings.”

    This is the only thing you can say in response to the numerous arguments of the dissent? Rather than responding to his reasoning, you simply label it “vile” in “tone” – as if that alone undoes the validity of his points – and complain that feelings were surely hurt. The feelings of those who support marriage were also hurt by the decision, but that clearly does not hold any sway with you. So this is not really about feelings, then. It’s about truth and falsehood, logic and illogic, and the requirements of the Constitution. If you’re going to take a stand on the decision as an attorney, you could at least present arguments instead of merely cheering for the majority and booing the minority.

    • Josh,

      I certainly did not say this as the only objection to Scalia’s dissent, which contrary to your assertion actually contained no valid arguments at all. I think Scalia substitutes obnoxiousness for legal analysis and has done so for years. Whether you want gay marriage to be legal or not, it is unclear why your feelings would be hurt by the subject. I do agree that this issue is not whether other justices are insulted by Scalia, I think the answer is clearly yes, but that does not change whether a correct decision is reached.

      As to whether I addressed the substance, I did. The beginning of my post addressed the fact that the Court has clearly been moving in this direction for years (specifically since Romer v. Evans was decided in 1996, the year DOMA was passed). I didn’t think it necessary to summarize the entire opinion, as the Court itself does that.

      As to the requirements of the Constitution, it seems sensible to read due process and equal protection rights as prohibiting the government from singling out unpopular groups for disparate treatment, which is what DOMA did, and for no apparent reason.

      • True, you did not say it was your only objection to Scalia’s dissent. In fact, you did not say anything else about Scalia’s dissent. You said only that it was “vile” and surely hurt some people’s feelings. It is not my obligation as a reader to guess which reasons you might have offered yet somehow failed to offer. Your first paragraph of your response is, like your original post, merely an expression of disgust and contains no actual evidence that Scalia’s dissent was incorrect.

        Second, claiming that the Court’s decision is in line with recent decisions is first of all debatable. Even assuming you are right, however, those decisions are recent and from a very divided court, and could not properly serve as the basis for so momentous an act as overturning DOMA and obviously paving the way for mandating same-sex “marriage”. And in any case, citing to a few recent case is not itself a compelling argument. Or would it have been a compelling argument, in your view, to say that because the Court in a number of cases upheld significant imitations on free speech for reasons of national security, those precedents must be followed forever? (And those precedents, before they were mostly overturned, were more numerous and of much longer standing.)

        The fact that you, like Kennedy, cannot imagine a single reason for protecting marriage, is not surprising, although disappointing. It is especially disappointing since, as an orthodox Jew, you might be expected to have a deeper understanding of the nature and purpose of marriage. You might at least refrain from celebrating Supreme Court decisions that run counter to that understanding. And if you cannot bring yourself to think of a reason for protecting marriage, you might look up an article or two on the topic and educate yourself. Have you ever read any serious book or even article by the opposition (excluding the dissent by Scalia)?

        As for your statement that it is “sensible” to think that the 14th amendment somehow requires the removal of the sexual distinction in marriage, such a notion is baseless on its face in light of the text (if the text can be made to mean that, it can be made to mean anything), and becomes downright silly upon examination of the history of the amendment’s passage.

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