When the landmark
marriage equality ruling striking down the Defense of Marriage Act was handed down in June of 2013, Justice Anton Scalia penned such
a scathing dissent I was worried for his health. It was a rant worthy of song. As I read, I could actually feel the veins popping out on my own forehead, so shitty was his mood and so sympathetic a reader am I.
When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with 'whether the government must give formal recognition to any relationship that homosexual persons seek to enter,'" he wrote. "Now we are told that DOMA is invalid because it 'demeans the couple, whose moral and sexual choices the Constitution protects,' ante, at 23 -- with an accompanying citation of Lawrence.
"It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will 'confine' the Court’s holding is its sense of what it can get away with."
Please continue reading under the fold.
Scalia was mighty pissed that day, my friends, mighty pissed. Bear in mind that he had been holding a smoldering grudge since 2003 when SCOTUS decided that the having of gay sex couldn't put you behind bars any longer. Now that these uppity gay-sex-havers are on the road to unfettered matrimony from sea to shining sea, Scalia's bitter grapes are surely wadded up in a pinched bunch this weekend.
What makes this particularly delightful is that the lower courts deciding these cases have candidly trolled Scalia, quoting his own monumental tantrum time and again. One specific and prescient moment in his dissent has become his own rickroll, his ironic Groundhog Day.
As I have said, the real rationale of today's opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by 'bare . . . desire to harm' couples in same-sex marriages. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status.
Aside from his dripping condescension, Scalia had this exactly right. How inevitable, indeed. What he predicted has come to pass and with much more speed and urgency than almost anyone could have imagined. This has been Scalia's own
annus horribilis.
It was just mid-September when Ruth Bader Ginsburg spoke to students at the University of Minnesota's Law School and said that there was "no need to rush" a decision by the high court. That angered some activists, but with just three weeks' hindsight, it turned out to be a wise decision. Few can deny just how awesome it has been to watch as state after state has granted equal rights to their citizens this past week, with more promising to come. The dam has burst. When and if the U.S.Supreme Court does take up marriage equality again, it will only need do so to mop up the very few strongholds of tenacious bigotry remaining in the states.
Justice Scalia deserves a very special mention as this process has unfolded. Even though he meant every callous, sarcastic word in his dissenting opinion and I will always loathe him for it, he served a purpose greater than himself. He served to remind voters of what is really at stake—that A Matter of Interpretation of our laws must apply equally and fairly to each and every one of us. Particularly when all that legal argle bargle is backed up by sound, constitutional law.
