WASHINGTON -- A day after siding with four other conservative justices to overturn a portion of a nearly 50 year old civil rights law that maintained broad bipartisan support, Justice Antonin Scalia lashed out at the Supreme Court for intervening in the gay marriage debate.
When it came to protections for minority voters, Scalia had no patience for democracy, specifically noting that the court should overturn the law because it is too popular to overturn in Congress. But as far as protections for gay and lesbian couples are concerned, Scalia would prefer the court stay away.
The court struck down the Defense of Marriage Act on Wednesday in a 5-4 decision. In a dissent choked with rage, Scalia dismissed the majority's reasoning as "legalistic argle-bargle."
Scalia's dissent is less a legal argument and more a plea for recognition that there are "good people on all sides." In it, he repeatedly played the role of victim, complaining that it is unfair that his opposition to gay marriage is no longer considered legitimate.
"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," Scalia wrote, accusing the majority of "declaring anyone opposed to same-sex marriage an enemy of human decency ... In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us."
"To hurl such accusations so casually demeans this institution," said Scalia, before using his dissent to re-argue the legality of sodomy. Wednesday's decision was inevitable, he said, when the court sanctioned "homosexual sodomy," and striking down the Defense of Marriage Act will inevitably lead to fully legal same-sex marriages.
"When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with 'whether the government must give formal recognition to any relationship that homosexual persons seek to enter,'" he wrote. "Now we are told that DOMA is invalid because it 'demeans the couple, whose moral and sexual choices the Constitution protects,' ante, at 23 -- with an accompanying citation of Lawrence.
"It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here — when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will 'confine' the Court’s holding is its sense of what it can get away with."
Along with debating sodomy, Scalia drew a connection to polygamy, noting "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."
Scalia argued that the question of same-sex marriage should be left to Congress and the states.
"We might have let the People decide," he said. "But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent."