United States v. Windsor - But why on earth would anyone believe such a thing?

The Darkness Gathers

by James Kalb

In his dissent in United States v. Windsor, the Supreme Court decision invalidating the federal definition of marriage as natural marriage, Justice Scalia rightly identified as particularly outrageous the Court’s assertion that the purpose of the definition was a “‘bare … desire to harm’ couples in same-sex marriages.”

The assertion is ignorant and bigoted to the point of being delusional. It’s not as if the justices hadn’t seen arguments to the contrary. How did they come to say such a thing?

From one perspective the Court was simply doing what it always does when it establishes as a matter of constitutional law sexual autonomy rights that are favored by governing elites but lack any basis in the Constitution. It has the justice with the least professional shame (William O. Douglas) or the least intelligence (Harry Blackmun, Anthony Kennedy) put together some words that purportedly support the right. The rest of the majority then attach their names to what he writes, and it becomes a leading case from which principles and language can be extracted for use in further development of legal principle.

Still, four additional justices signed on to the opinion as it stands, and no doubt commented on it in advance, and they had good reason to take what it said very seriously. Also, they had signed on to similar assertions in previous majority opinions composed by Justice Kennedy. So we have to assume that they are prepared to commit themselves to the assertion and want it treated as a prominent example of the kind of reasoning by which our fundamental law should be determined.

Kennedy did not, of course, invent the claim. He has enough intelligence, and undoubtedly received enough advice, to choose a theme that would fly in the circles he wants to impress. And from what counts as serious discussion by serious people in our country it is clear that most well-placed and influential Americans have come to believe that opposition to same-sex marriage can only be a matter of ignorance and bigotry. They are convinced that a social institution that involves sexual differentiation can have no legitimate function or right to exist, and the point is so obvious that no rightly constituted mind could possibly believe otherwise.

But why on earth would anyone believe such a thing?

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