Justice Scalia, in his dissenting opinion on U.S. v. Windsor stated the facts more eloquently than I ever could:
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. A reminder that dis-agreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
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 thatcomes from a fair defeat. We owed both of them better. I dissent.
True to prediction and true to form, the upheaval of state constitutions begins in earnest — and in the Commonwealth of Virginia no less the hammer drops hardest:
A federal judge has declared Virginia’s law banning same-sex marriage unconstitutional, according to Attorney General Mark Herring.
A spokesman for Herring, a Democrat, in an e-mail Thursday night said Norfolk-based U.S. District Court Judge Arenda Wright Allen issued that ruling.
In her decision, Wright concluded that “Virginia’s Marriage Laws unconstitutionally deny Virginia’s gay and lesbian citizens the fundamental freedom to choose to marry.”
The lawsuit challenging the state’s 2006 constitutional amendment limiting marriage to one man and one woman, and a related statute, was initially brought by a Norfolk gay couple blocked from getting married.
The decision reads very simply that U.S. v. Windsor changes the landscape. It’s a masterful hit piece on the Judeo-Christian underpinnings that gave us our American jurisprudence system, but I’ll let the real meat of the decision stand on its own merits (page 17 for those who want to follow at home):
This Court concludes that doctrinal developments since 1971 compel the conclusion that Baker is no longerbinding. The Second Circuit recognized this explicitly, holding that “[e]ven if Baker might have hadresonance … in 1971, it does not today.” Windsor v. United States, 699 F.3d 169, 178 (2d Cir. 2012), affd, 133 S. Ct. 2675 (2013) (holding that Baker did not foreclose jurisdiction overreview of the federal Defense of Marriage Act(“DOMA”)). In so holding, the Second Circuit relied upon doctrinal developments from Supreme Court decisions, including cases creating the term “intermediate scrutiny” in Craig v. Boren, 429 U.S. 190, 218 (1976) (Rehnquist, J., dissenting); discussing classifications based on sex and illegitimacy in Lalli v. Lalli, 439 U.S. 259, 264-65 (1978); and finding no rational basis for “a classification of [homosexuals] undertaken for its own sake” in Romer v. Evans, 517 U.S. 620, 635 (1996). Windsor, 699 F.3d at 178-79.
I am amazed that the Eastern District is relying on jurisprudence crafted in the past year, using both Windsor and Utah as fulcrums to turn an institution that has survived both empire and time on its head — all with the veneer of the rule of law, but in practice merely crafts the jurisprudence to fit the whims of a legal elite kowtowing to a perceived majority.
Of course, this will not abate the absolutely stunning bigotry against those defending traditional families. Not one iota.
Scalia was right after all, and it will be interesting to watch the kabuki theater of appeals leading to a 5-4 vote on the U.S. Supreme Court, will it not?
(T)o 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. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its 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. All that, simply for supporting an Act that did not more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. 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.
Institutions turned upside down. Law discarded. The IRS investigating social welfare and citizen advocacy 501(c)(4)s at will. No small wonder why folks are so eager to lay gloves on those who defend what 20 years ago no sane person would have questioned.
We’re on the verge of codifying Obamacare through Medicaid expansion via “compromise” in the eyes of Republican leadership in Richmond. The biennial budget has grown almost 200% since the turn of the century. Marriage is on the brink, abortion laws are still the most liberal on the planet, taxes have gone up, fees have gone up, educational standards have gone down, quality of education has gone down, the bureaucracy has grown, and the only thing that keeps us afloat — the People’s Republic of Northern Virginia — is entirely fueled by the federal government’s largess.
Such is the world; such are the times.
As for marriage and family, it’s about time we started having an honest conversation about the rights of children in this equation. Every child has the right a mother and a father, and society has long held a vested interest in promoting the best possible environment for the next generation of citizens. What we are getting in exchange today is one of the largest social experiments ever conducted on a society — the wide scale redefinition of what constitutes a family, despite all the evidence to the contrary that the best place for children to thrive is with their own parents in a stable marriage.
Sometimes when the world has turned crazy, the best thing to do is follow in the footsteps of your heroes.
I join Justice Scalia. I dissent.
