A voice of reason, from the dustbin

IT CERTAINLY is crowded down here at the bottom of history's dustbin. There's very little breathing space, what with those of us who reject a woman's right to destroy the child growing within her body, those who believe that religious principles deserve respect in the face of overbearing health-care mandates and those who consider starving someone to death because they're in a so-called "vegetative state" to be a criminal act, not an act of mercy. And now we have to make room for those who accept the quaint notion that marriage is a centuries-old social compact that, for legitimate reasons, including the not inconsequential goal of rearing children, should be reserved for one man and one woman (at one time).

What a motley collection of outgrown principles, consigned by the champions of enlightenment to the cramped confines of oblivion.

Alas, that's what happens when a Supreme Court justice (and he's usually named Anthony Kennedy) calls you a bigot and believes that you support traditional marriage simply because you have hatred in your heart. Or, as the liberty-loving jurist wrote on Wednesday in his majority opinion striking down the Defense of Marriage Act, "What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage."

And there it is. According to Justice Kennedy - the man who single-handedly decriminalized sodomy 10 years ago in Lawrence v. Texas - the only reason that the federal government could have passed DOMA is to disenfranchise, disrespect and disassociate itself from gay and lesbian citizens. In a helpful dissent (helpful because it points out that the decision in U.S. v. Windsor is strictly limited to those states where gay marriage is legal, which is less than a third, at last count), Chief Justice Roberts observed that there were other legitimate reasons for passing DOMA and getting Bill Clinton to sign it, including the chaos that will be caused for an already incompetent IRS when it has to decide whether a couple is entitled to file joint tax returns. If you are married in a state that recognizes gay marriage but move to one that does not, it presents what we in the business call a "choice of law" problem. Of course, that isn't sexy enough for the LGBT advocates, who think that all this annoying minutiae about consistency and conformity in the processing of federal benefits is less important than strangling bigots with rainbows.

Kennedy's opinion sounds like the script from a Lifetime channel movie, when he talks broadly about "second class" and "stigmas" and "dignity," as if the fact that overturning centuries of settled and unquestioned law, culture and expectation was really just a long history of persecution. Kennedy seems to think that he actually has the smoking gun that proves the discriminatory intent of Congress in passing DOMA when he points to the law's name, the Defense of Marriage Act, and says "J'accuse!" Apparently, naming a bill the Defense of Marriage Act is the same as calling it the "We Hate Sexual Minorities Act."

The legal reasoning in the Windsor decision is, as Justice Antonin Scalia notes in a scathing dissent, all over the place. It's kind of like watching a flea-flicker pass in football, trying to follow all the different rationales provided by Kennedy. First, it's the Fifth Amendment due-process right that compels the invalidation of DOMA. Then it's the Equal Protection clause of the Fourteenth Amendment. Then it's the deference owed to the states that traditionally (but not uniquely) have defined the parameters of marriage. For example, as Scalia notes, the federal government in the past has exerted control over the states with respect to marriage, including forcing Utah to ban plural marriage before it allowed it to enter the union. So, while it's true that states are uniquely qualified and have usually been the arbiters of what constitutes a valid marriage, it's not unheard of for the federal government to stick its nose into local business.

Kennedy did here what he did in the abortion debate decades ago: try to find some legal support for that grand and glorious individual-liberty interest that he thinks every American should have (except perhaps the tiniest unborn ones). While that's great when it's incorporated into fiction or soap operas or ballads, it doesn't play well when it's coming from one of the three branches of federal government.

There are legitimate reasons why DOMA should not have been invalidated, including this: judicial override of a bill that was passed by an overwhelming majority in the Senate, simply because you think it's mean-spirited and does severe damage to our political process. This is especially so when the legal reasoning is so scattershot.

But Anthony Kennedy wanted to send a broad rainbow-colored message that anyone who opposed same-sex marriage was evil. For that, he had a lot of support, and when you have that kind of popular support, people aren't going to start looking too deeply at legal coherence.

That goes in the dustbin, too.


Christine M. Flowers is a lawyer.

Email: cflowers1961@gmail.com

Blog: philly.com/flowers