So the Supreme Court did it. Antonin Scalia, defender of the will of the people, averred that the “democratically adopted legislation” once known as the Defense of Marriage Act and forever as a destructive historical footnote, deserved less scrutiny than the Voting Rights Act when it passed with overwhelming majorities in both houses of Congress in 2006. In twenty-four hours Scalia transformed from Cardinal Richelieu to Andrew Jackson. His dissent in United States v. Windsor incited “what the shit?” every time I read a paragraph. My favorite:
To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution.
In other words: “If you think I’m insulting you, that’s your problem.” Or:
We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.
Sound familiar? Thank Henry Brown, author of the majority opinion in Plessy v. Ferguson. But Samuel Alito’s, which got little attention, breathes from the same air of frustration:
To the extent that the Court takes the position that the question of same-sex marriage should be resolved primarily at the state level, I wholeheartedly agree. I hope that the Court will ultimately permit the people of each State to decide this question for themselves. Unless the Court is willing to allow this to occur, the whiffs of federalism in the today’s opinion of the Court will soon be scattered to the wind.
Unwilling to question the sapience of a hunk of federal legislation like DOMA but blind to what elected officials did in 2006 with VRA, Alito buries any notion that he cares not a whit about “judicial activism.”
When the Court struck down Bowers v, Hardwick in 2003, the idea of homosexual equality under the law was so exotic that I spent the summer reading Hannah Arendt for legal justification, particularly “Reflections on Little Rock,” an intelligent, finely wrought essay whose substance as predictive rhetoric was dead wrong but which also boasted a quiet bomb: “The right to marry whoever one wishes is an elementary human right compared to which ‘the right to attend an integrated school, the right to sit where one pleases on a bus, the right to go into any hotel or recreation area or place of amusement, regardless of one’s skin or color or race’ are minor indeed.” A letter posted by Andrew Sulivan alludes to our inviolate rights to privacy:
I am so glad to be alive to appreciate this moment. And to carry the memory of people who didn’t survive, whose deaths and whose battles for acceptance and love, whether private and within their families, or public, whether gentle or fierce, helped bring this to be. As you note, timing mattered so much in determining who lived and who died. But the survivors, like you, carried on the fight. My best friend’s older brother died of AIDS in 1994. He had come out as a teenager, in the late 1970s. He was never able to have a spouse, but his little brother – also gay, but much younger – was spared from the plague, and can now marry his sweetheart of 25+ years.
But I recoil from these sentiments too. It implicitly acknowledges that marriage — for gays and straights — is, to quote Wallace Stevens, the intensest rendezvous. I suppose the first step towards full equality is the chance to commit the same sins as the privileged class.
Moreover, don’t forget: Chief Justice John Roberts’ New Federalism project continues and deepens; and it sucks to be poor, gay, and black in the South. Charles Pierce: “We lose DOMA and the Voting Rights Act in the same week. To me, that’s not even a tie. Forgive me if I can muster only two cheers for it.”
Humanizing The Vacuum 