Though five of the Supreme Court Justices ruled today that the Defense of Marriage Act violates the equal protection of same-sex couples, the other four dissented, challenging the Majority’s claims. In particular, they took umbrage at the notion that opposing marriage equality might be considered “bigotry,” subtly suggesting that there are reasons to ban same-sex marriage that are not anti-gay — without much specificity.
Chief Justice John Roberts bristled at the accusation of bigotry in his dissent, suggesting DOMA could be valid simply because it offers “uniformity” under the law:
ROBERTS: Interests in uniformity and stability amply justified Congress’s decision to retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world. [...] At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
Of course, the argument of uniformity could just as easily be used to support the opposite position. There is nothing uniform about recognizing some of a state’s legal marriages but not others.
Justice Samuel Alito was convinced by arguments from tradition, blithely ignoring that gay people already exist and have families and instead worrying about unknown consequences:
ALITO: We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come. [...] At present, no one—including social scientists, philosophers, and historians—can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.
Alito’s fears have no merit, but it seems he conveniently ignored the amicus briefs filed by all major medical organizations, including sociologists, which expressed a broad consensus of support for marriage equality.
Unsurprisingly, Justice Antonin Scalia’s reactions were the most vitriolic.
Like Chief Justice Roberts, Scalia believes that DOMA was not passed because of animus against gay people — the evidence be damned — but just out of “stabilizing prudence.” In fact, despite the House Report from when DOMA was passed, Scalia simply dismisses the anti-gay motivations as “untrue”:
SCALIA: I am sure these accusations are 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.
Despite Scalia’s long history of anti-gay aspersions, he wants the world to know he’s not a monster:
SCALIA: In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents 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.
It’s telling that Scalia resents the implication that he disparaged “our fellow human beings, our fellow citizens, who are homosexual,” but did not bother to acknowledge their lived experiences. While the Majority was recognizing that striking down DOMA will protect the many children already being raised by same-sex children, the conservative Justices were too busy defending their own endorsements of discrimination.