Scalia: ‘No one should be fooled’

Supreme Court Justice Antonin Scalia blasted the ruling on the Defense of Marriage Act as opening the door to a federal right to same-sex marriage.

“As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe,” Scalia said on Wednesday.

In a 5-4 decision, the court struck down a federal law defining marriage as a union between a man and a woman. The court did not rule on state laws that define marriage, and it said its decision was confined to federal restrictions.

But Scalia said the tenor of the decision shows that the court will likely strike down state laws as well.


“I promise you this: The only thing that will 'confine' the Court’s holding is its sense of what it can get away with,” Scalia wrote in a stinging dissent.

The court’s conservative justices were clearly concerned about how far the decision on the Defense of Marriage Act would go — both in its actual holding and in setting precedent for future cases.

Chief Justice John Roberts filed his own dissent, primarily to say he took seriously the disclaimers Scalia criticized in the majority opinion.

“I write only to highlight the limits of the majority’s holding and reasoning today, lest its opinion be taken to resolve not only a question that I believe is not properly before us — DOMA’s constitutionality — but also a question that all agree, and the Court explicitly acknowledges, is not at issue,” Roberts said.

Justice Anthony Kennedy, who wrote the majority opinion, did not say that the Constitution guarantees a right to same-sex marriage. The court avoided ruling at all in a separate case that sought a broad ruling on constitutional principles.
Instead, Kennedy said the DOMA ruling was a correction of federal overreach that would leave the issue of marriage to the states.

Scalia mocked Kennedy’s decision for employing civil-rights rhetoric while technically only ruling on a question of state versus federal power.

“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,” Scalia said.

Kennedy wrote that DOMA was enacted to discriminate against same-sex couples, even in states that have legalized same-sex marriage. The law “humiliates tens of thousands of children now being raised by same-sex couples” and serves to “degrade” certain marriages in the eyes of society, he said.

"The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma on upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States," Kennedy wrote.

Scalia said ascribing discriminatory motives to DOMA was an effort to “maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob.”

Kennedy’s rhetoric was also a sign that the Supreme Court will eventually strike down state laws limiting marriage to men and women, Scalia said.

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition,” Scalia wrote.

Justice Samuel Alito, also a conservative, did not go as far as Scalia, but said the majority ruling contained only “whiffs” of concern for balancing state and federal power.

“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,” Alito wrote. “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 today’s opinion of the Court will soon be scattered to the wind.”