A mere 17 years ago, 342 members of the U.S. House of Representatives and 85 U.S. senators voted to pass the Defense of Marriage Act (DOMA), which clarified that “marriage” under federal law meant the union of one man and one woman. President Bill Clinton signed it. On Wednesday, the U.S. Supreme Court declared all 360 of those elected officials bigots. As judicial overreaches go, this one was a stunner.
A strong legal case can be made that DOMA unconstitutionally intruded upon the states’ sovereign powers. Regulating marriage has always been the province of the states. Through DOMA, Congress grabbed for itself power rightly reserved to the states. There are even arguments that it must be struck down on sex discrimination grounds or as a violation of the Fifth Amendment (where the court ultimately wound up). Yet the court went far out of its way to pronounce DOMA a malicious act of willful bigotry. As is too often the case, it produced an ill-reasoned ruling by finding a conclusion it hoped to reach, then clumsily grasping for legal arguments to justify it.
The first clue of this was that the court took the case at all. Both the plaintiff and the U.S. government agreed that the section of DOMA being challenged was unconstitutional. The appeal should have been denied, as Justice Antonin Scalia pointed out in his dissent. But Justice Anthony Kennedy and the liberal justices could not resist the temptation to legislate from the bench.
Kennedy wrote that Congress, through DOMA, “seeks to injure the very class New York seeks to protect (same-sex couples).” He continued: “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.”
Dozens of currently serving congressional Democrats — including the famously liberal Patrick Leahy of Vermont and Chuck Schumer of New York — voted for DOMA. Their purpose was to injure gay Americans? No. The purpose of the law was to maintain the existing — and universal within the United States — definition of marriage.
Kennedy’s smear was deliberate. Without it, he could not overturn DOMA on the broad equal protection grounds he desired. Only such a sweeping ruling could set the stage for striking down state same-sex marriage bans, which are all doomed by this ruling.
The United States of America will survive that change. How the republic will fare with a Supreme Court that habitually dismisses its own constitutional constraints is another question.