A rally for rights for gay couples in front of the Supreme Court in Washington, Wednesday, June 26, 2013. (AP Photo/Charles Dharapak)
In his majority opinion  invalidating the federal application of the Defense of Marriage Act, Justice Anthony Kennedy did more than strike a blow to a statute championed by religious conservatives. By detailing the cruel motives of lawmakers who couched their purpose in preserving the nation’s “Judeo-Christian” heritage, Kennedy’s opinion quite remarkably scolds members of Congress for using religiously based “morality” as a bludgeon to the rights of other citizens.
Obviously the Court in United States v. Windsor did not hold that Congress cannot legislate morality; it only held that this particular law violated the equal protection rights of certain citizens. But by finding that “the principal purpose” of DOMA was to “impose inequality,” the Court majority cast a dim view on efforts to legislate alleged “Judeo-Christian” morality, and to use that as an excuse for discrimination.
Indeed today’s opinion aims directly at the heart of the religious right’s operating principle that “biblical principles” must undergird all legislation. The corollary of that operating principle is that laws also must protect the “religious freedom” of those advancing “biblical” laws by depriving LGBT people of equal rights. Kennedy shot down, rhetorically at least, both those principles today.
In detailing DOMA’s legislative history, Kennedy wrote that the “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.” In other words, Kennedy rejected the notion that DOMA supporters were defending or supporting anything but discrimination.
As Kennedy noted, in advancing the bill in 1996, House lawmakers argued that DOMA expressed “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.” This and other statements from DOMA’s legislative history, and from the Bipartisan Legal Advisory Group that fought to save DOMA in court, led the majority to conclude that the bill’s “demonstrated purpose” was to treat same-sex unions as “second-class marriages,” in violation of the Constitution.
The defensiveness of the dissenting Justices foreshadows how the religious right will use this ruling to claim discrimination against opponents of LGBT rights. Chief Justice John Roberts chided the majority for “tar[ring] the political branches with the brush of bigotry.” Justice Samuel Alito argued, “Acceptance of the [majority’s] argument would cast all those who cling to traditional beliefs about the nature of marriage in the role of bigots or superstitious fools.”
Justice Antonin Scalia was downright cantankerous, lambasting the “black-robed supremacy that today’s majority finds so attractive,” a dog-whistle to conservative claims that “black-robed” judges engage in power grabs at the expense of God-fearing citizens. “The Constitution does not forbid the government to enforce traditional moral and sexual norms,” he complained.
Scalia attacked the majority for failing to address what he considers to be reasonable justifications for DOMA, adding, “I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.“ He accused the majority of “adjudging those who oppose it” of being “enemies of the human race.”
Scalia, foreshadowing religious conservative reaction, insisted that there are reasonable justifications for DOMA, and accused the majority of silencing those who make that argument. “To question [the majority’s] 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,” he wrote, as if DOMA’s supporters’ own words did not prove such a purpose.
The dissenting Justices seem to want to create a new victim here—themselves. But the majority opinion does something more than just strike down a statute. It signaled the Court’s intolerance for discrimination masquerading as religion.