United States v. Windsor: Scalia in dissent

Justice Scalia believes it wasn't the Supreme Court's business to rule for or against the constitutionality of the Defense of Marriage Act in the case of United States v. Windsor. The case itself had no business in the Court, he contends, because a federal government that opposed DOMA only chose to appeal a lower-court ruling against the controversial law in order to force the higher court to rule on its constitutionality. Under those circumstances, Windsor's case was not an authentically adversarial proceeding, and only when there is an actual dispute over a law, according to Scalia, does the Supreme Court have a right to rule on the constitutionality of the law. In his view, judicial review is only an "incidental" function of the Court, something it does occasionally in the course of adjudicating a legitimate legal dispute. By comparison, because of the circumstances that brought Windsor to the high court, Scalia accuses the majority of a usurpation of power, of claiming for itself a veto power prior to its jurisdiction in legal disputes. In short, Scalia believes that the Court has no right to declare a law unconstitutional on its own initiative, yet exploited an artificial dispute to do so in Windsor.

For the sake of argument, Scalia consideres DOMA constitutional. "As I have observed before," he writes, "the Constitution does not forbid the government to enforce traditional moral and sexual norms." Since he has made that argument before, his Windsor dissent focuses on the ad hominem attack on DOMA waged by the majority. He objects to the claim that DOMA was motivated primarily if not solely by "malice" toward homosexuals. Thinking this to be the majority's primary argument against DOMA, he regards the majority opinion as a break with precedent, citing a 1968 opinion that "this court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." The Windsor majority, Scalia suggests, now argues that illicit motive itself renders legislation unconstitutional. As far as he's concerned, the charge of malice, however irrelevant, is also "quite untrue."

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.

Whether the effect of a defense of traditional marriage demeans or humiliates anyone appears to be irrelevant. The question of intent or effect is itself irrelevant to Scalia's ultimate line of dissent. In the absence of a constitutional amendment placing the rights of homosexuals beyond the reach of legislation, the Supreme Court has no right to place the claims of homosexuals beyond the reach of democracy.

Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves. Since DOMA's passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion and loud voices -- in other words, democracy. Victories in one place for some ... are offset by victories in other places for others....

It is hard to admit that one's political enemies are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today's Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today by promising all sides of the debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do.

Scalia closes by claiming that everybody lost in Windsor. In a truly democratic debate, he says, the winners have the satisfaction of an "honest victory" while the losers at least enjoy "the peace that comes from a fair defeat."  This may be the time to emphasize the extent to which the gay-rights movement is revolutionary. Its activists are likely never to be satisfied with the peace that comes from a fair defeat. The idea of a fair defeat is most likely alien to their aspirations, because homosexuals really are making an absolute demand that their rights, particularly their civil equality in matters of property sharing and family rights, should be placed beyond the reach of legislation or democracy, that those rights should no longer be subject to debate. In effect, they demand the recognition of something equivalent to a natural (hence inalienable) right to their sexual identity and an equivalent immunity from discrimination based on their sexuality. This revolution is still not yet a popular one in the most practical sense; national opinion polls show growing support for civil equality for homosexual families, but legislation or referenda enacting that equality still go down to defeat in some places, and it remains very uncertain whether a gay-rights constitutional amendment could prevail in enough states to make it the supreme law of the land. In the meantime, liberal and libertarian jurists seek shortcuts through inference that rarely convince conservatives focused on the radical novelty of the gay-rights demand.

I suspect that Scalia, for all his snarky erudition, sees all cases touching on gay rights as attempts to affirm a core right to gayness he can't find in the Constitution. For him, it is probably an amendment or nothing, and as a person rather than a judge he would probably fight the amendment every step of the way. For people more sympathetic toward gay rights yet skeptical toward natural rights, it's necessary to ask what it would take to place homosexual equality beyond the reach of democracy or legislation  -- not to mention whether anything, absent natural rights, can be placed permanently beyond that reach. Scalia takes the side of democracy on this question, at least partly because he thinks democracy is still on his side. His confidence should make us ask whether democracy really is the best guarantor of individual rights, especially when what seem to be new rights are asserted. It may be necessary in some cases for the people as a whole to be less free in order for individuals to be more free. Some may claim to know when the balance should tip toward individuals, and when it should tip toward the people. Should those distinctions be subject to votes? Is democracy an end unto itself or a means to an end that conditions it? It's easy to dismiss Scalia's dissent in the Windsor case as another outburst of repressed homophobia, but it should be somewhat less easy to dismiss the implications of the gay-rights controversy for our ideas of democracy and justice.