I’ve seen a lot of praise for Antonin Scalia in his dissenting minority opinion against the majority that struck down one part of the defense of marriage act. But I don’t think, as insightful as Scalia was, that he really has drilled down to the essence of what the Kennedy-led majority has done.
Scalia, if you haven’t heard, pointed out that the majority has condemned as evil anyone who would oppose same-sex “marriage.” He wrote that the majority,
“accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice … to disparage and to injure same-sex couples. It says that the motivation for DOMA was to ‘demean,’ to ‘impose inequality,’ to … brand gay people as ‘unworthy,’ and to ‘humiliat[e]’ their children.”
Scalia presented evidence for his case. I think he supported what he said in good faith. So he starkly presented the anti-DOMA majority as having passed moral judgment on all who supported DOMA.
“In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’ our fellow human beings, our fellow citizens, who are homosexual… It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”
All of this is good, but I think it leaves out the main point that the majority is striving to deal with. Throughout the history of the United States from its founding, and through much of the Western Tradition, not only was marriage intrinsically heterosexual, but homosexual acts were considered sinful. And the majority of the Supreme Court has dictated otherwise. Homosexual acts are not sinful, they are completely normal and acceptable.
The Supreme Court has ruled:
- Christianity is false: it teaches homosexual acts are a perversion of sex; but we know they are healthy and good for those who prefer to do them
- Christianity is immoral: it teaches that people who commit homosexual acts are sinning; but we know they are sinning by disparaging homosexual acts and, by extension, those who like to participate in them.
- Christianity is socially destructive: it teaches that good people should discourage homosexual acts for the sake of everyone, especially those tempted to them; and we know that such judgments are oppressive of a minority and therefore anti-social.
In all of this the “libertarian” option has proved to be a bait and switch. Keep the government out of the bedroom has now become the demand for punishing businesses, private schools, and soon churches who will not desist “to ‘disparage,’ ‘injure,’ ‘degrade,’ ‘demean,’ and ‘humiliate’” those who now hold the whip.