Justice Anthony Kennedy's Contempt

By Rich Lowry

 

Supreme Court Justice Anthony Kennedy has contempt for a swath of his fellow citizens.

If you disagree with him about gay marriage, indeed, if you merely think the federal government should continue to define marriage the traditional way while the states define it however they want, then you are a bigot. Your views deserve no political representation.

They should be ground underfoot by the five mightiest and most broadminded people in the land, presiding from their temple of rationality and tolerance at the United States Supreme Court.

Kennedy wrote Wednesday’s majority decision striking down the 1996 Defense of Marriage Act, which defines marriage as a union between a man and a woman for purposes of federal law. The decision declared a position that had been held by President Barack Obama until the day before yesterday a relic of barbarism and set the predicate for the court — in its wisdom, nay, in its heightened state of enlightenment — to enshrine its view of marriage as the law from sea to shining sea.

The majority held that DOMA inflicts an “injury and indignity” on gay couples so severe that it denies “an essential part of the liberty protected by the Fifth Amendment.” It is motivated by a “‘bare congressional desire to harm a politically unpopular group.’” There is, in short, nothing to be said for it or the point of view of its supporters. Period. Full stop.

Kennedy mumbles about federalism concerns at the beginning of his decision, but it’s hard to argue that the federal government can’t have a definition of marriage as a guide to administering federal policy and benefits. As Ed Whelan of the Ethics and Public Policy Center points out, the federal government has myriad programs that require such a definition.

“Under provisions of the Internal Revenue Code,” Whelan writes, “a person who is legally separated from his spouse, but not yet divorced, is treated as unmarried, as is a person whose spouse is a nonresident alien. Likewise, under the immigration laws, a marriage entered into for the purpose of gaining an immigrant’s admission will be disregarded even though that marriage remains valid under state law.”

DOMA serves, as Justice Antonin Scalia points out in his dissent, a rather obvious purpose. If a gay couple marries in Albany, where gay marriage is recognized, and moves to Alabama, where it is not, is the federal government supposed to defer to the law of New York or Alabama? DOMA settles the question.

So after the federalism throat clearing, Kennedy simply declares the supporters of DOMA hateful people. The members of Congress who passed the act and the president who signed it are morally no better than members of the Westboro Baptist Church who picket military funerals with their heinous signs declaring that “God hates fags.” Bill Clinton, apparently, despised gays. So did 342 members of the House and 85 senators, including 120 and 32 Democrats, respectively.

Bill Clinton now wishes he hadn’t signed it. Like so many others, he changed his mind on the issue. Fine. There is nothing to stop Congress from overturning what Bill Clinton considers his mistakes. It did it with “don’t ask, don’t tell.” It could have done the same thing — eventually — with DOMA.

But Justice Kennedy and his colleagues don’t want to wait for the long democratic process of deliberation to play itself out, not when they have such immense power to do whatever the hell they want.

 

Properly understood, the court’s role here is minimal and the decision could have been rendered in a sentence. To wit, as Scalia wrote, “It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy or the consumption of alcohol.”

The court stipulated that its decision prohibits a traditional definition of marriage only at the federal level and that the states are free to debate and decide the issue themselves. This is a false assurance, though. Once the high court has declared that the traditional definition is a product of irrational animus, over time it won’t be allowed to stand anywhere.

It is Anthony Kennedy’s country. We only live in it.