In an equally scathing dissent handed down in the DOMA case today, Scalia called the decision “jaw-dropping.” He castigated the Court’s majority for usurping the democratic process and for condemning all opposition to same-sex unions as “irrational and hateful.”
Even though the Court did not rule today that all states must legally recognize and allow for same-sex marriages, the handwriting is on the wall. Justice Kennedy’s majority opinion implicitly invites any citizen who resides in a state that does not allow for same-sex marriage to claim that his or her constitutional rights are violated on the basis of the Court’s opinion handed down today. You can count on a challenge of this form arising in short order.
As Justice Scalia noted in his dissent today, “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
The Court’s majority did not want to pay the political price that a decision as immediately sweeping as Roe v. Wade would have cost. Instead, the majority decided to send a clear signal that such a case will now be well received. It struck down DOMA by employing a logic that, as Scalia noted, cannot stop with the striking down of DOMA. It can only stop with the full legalization of same-sex marriage in all fifty states by judicial fiat.
But wait, for there are more shoes to drop. In his opinion today, remember that Justice Kennedy wrote these crucial words: “The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”
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