On DOMA, Right-Wing Justices Got It Right -- and Wrong

Antonin Scalia in 2010. Credit: Wiki Commons.

(This post is dedicated to my son, Angel, and his spouse, Thomas, who had to leave their home state and go to another state simply to exercise the legal right of enshrining their love in the bonds of matrimony.)

No one has ever accused Justice Antonin Scalia of timidity. So it’s not surprising that his opinion in United States v. Windsor, the case that struck down the federal Defense of Marriage Act (DOMA), fairly screams: I’m not a bigot. I’m not. I’m not.

“The majority says that the supporters of this Act acted with malice,” he claims in his dissent. And of course by dissenting he became a supporter of the act. So he must defend himself against the charge that he harbors malice toward gays and lesbians. “I am sure these accusations are quite untrue,” he retorts flatly. “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements... To hurl such accusations so casually demeans this institution.” In other words, “It demeans me!”

And I don’t want to demean anyone, Scalia clearly implies. I’m “simply supporting an Act that did no 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.”

Before we laugh off Scalia as a bigot flailing around to find some way to defend himself, let’s take a closer look at what he said. We liberals sort of take it for granted that bigots will be conservatives, and that conservatives are more likely to be bigots. But we all too rarely ask why that should be.

Scalia offers a glimpse of an answer here: It’s not that we have some kind of blind, irrational bias against certain groups of people, he argues. We merely want to keep up patterns of thought and behavior that have “been unquestioned in our society for most of its existence.” We want to conserve. Why do you think they call us conservatives?

Scalia’s partner in conservatism, Samuel Alito, agrees emphatically in his dissent (with which the silent partner, Clarence Thomas, joins): “It is well established that any ‘substantive’ component to the Due Process Clause protects only ‘those fundamental rights and liberties which are, objectively, ‘deeply rooted in this Nation’s history and tradition.’ ... It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. ... Nor is the right to same-sex marriage deeply rooted in the traditions of other nations.” So how can it be a fundamental right?

In other words, if you ain’t doin’ what we’ve always done, you ain’t got no right to be doin’ it -- at least no legal right protected by the Constitution.

Alito goes on to explain why. The opponents of DOMA want “the recognition of a very new right, and they seek this innovation ...  from unelected judges.” Those judges had best be cautious, he warns, because “the family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects.” No one “can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be.”

In other words, when you start doin’ things different from what we’ve always done, no one knows what you’ll do next. That makes life feel unstable, off balance, and dangerous. Conservatives conserve because it makes them feel safe.

Later in his opinion Alito seems to take the argument in a different direction: “Throughout human history ... marriage has been viewed as an exclusively opposite-sex institution and as one inextricably linked to procreation.” Now we’ve got a new, “’consent-based’ vision of marriage, a vision that primarily defines marriage as the solemnization of mutual commitment -- marked by strong emotional attachment and sexual attraction -- between two persons. ... Our popular culture is infused with this understanding of marriage.” So is the argument for same-sex marriage, Alito implies. If you accepted the old view that marriage is mainly for procreation, same-sex marriage would make no sense.  

Since “the Constitution does not codify either of these views of marriage,” he concludes, it should be up to the people, not the courts, to decide between them. And the people, through their elected representatives, have the right to choose “between competing visions of the good, provided that the vision of the good that they adopt is not countermanded by the Constitution.”

Of course the Court majority has now decided, in effect, that the vision of the good that links marriage to procreation is countermanded by the Constitution. But the conservatives say the majority is wrong -- because, and (as far as their written dissents tell us) only because, the old definition of marriage is, well, old: “deeply rooted in this Nation’s history and tradition.”

So it looks like “the purpose of marriage” and “the nature of the family,” which opponents of same-sex marriage generally cite as the crucial issues, really aren’t. The crucial issue is playing it safe by conserving tradition.

More evidence comes from The Bipartisan Legal Advisory Group of the U.S. House Of Representatives (BLAG) and its lead lawyer, Paul Clement, who represented the pro-DOMA forces in oral arguments before the Court. BLAG’s brief to the Court argued in detail that the purpose of marriage is for “providing a stable structure to raise unintended and unplanned offspring,” “encouraging the rearing of children by their biological parents,” and “promoting childrearing by both a mother and a father.”

But when Clement argued before the Court he never said a word about any of this. Not a word. What he talked about, over and over and over again, was the need to preserve the “traditional” understanding of marriage.

During the oral argument Justice Breyer summarized Clement’s view succinctly: “There has been this uniform one man - one woman rule for several hundred years or whatever, and there's a revolution going on in the States. [Congress said] we either adopt the revolution or push it along a little, or we stay out of it. And I think Mr. Clement was saying, well, we've [i.e., Congress] decided to stay out of it and the way to stay out of it is to go with the traditional thing.”

Behind all this legalese we see the link between bigotry and conservatism. The essence of bigotry is treating people unequally -- giving rights, privileges, and respect to one group that are denied to another group. The people with the rights and privileges pretty quickly get used to having those advantages. After a while the inequality becomes tradition, the way things have always been. As long as things stay that way, the world seems familiar, predictable, and therefore safe.

But as soon as there is any substantial step toward more equality -- whether it’s women getting the vote, blacks going to school with whites, undocumented immigrants getting a path to citizenship, same sex couples getting married, or whatever -- conservatives think, “Hey, if this can happen, who knows what can happen next?” As Justice Alito wrote, “No one ... can predict with any certainty what the long-term ramifications” will be.

So the right-wing justices did get something right. As they made clear, resisting same-sex marriage is merely the most current example of what’s always the really crucial issue for conservatives: continuity versus change; the familiar, which is predictable, stable, and safe (or so they want to believe), versus the unfamiliar, which feels so unpredictable, unstable, and scary. The essence of their arguments, whatever the issue, always comes back to conserving the old so we can avoid the uncertainty of the new.

Justice Anthony Kennedy, in the majority opinion, pointed out part of what the conservatives got wrong. If you really want to live in a stable, predictable society, he wrote, you should strike down DOMA. “By creating two contradictory marriage regimes within the same State, DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect.”

Kennedy recognizes the value of stability and predictability. But he understands that sometimes you get more of it by allowing change than by keeping things rigidly the same. That’s what makes him the swing vote on the Court.

Kennedy says that this decision applies only to people already married in states that allow same-sex marriage. By his own logic, though, he should have gone further. If the goal is a more stable, predictable society, as conservatives claim, then all couples who have made life-long commitments to each other should be able to get legally married.

After all, conservatives constantly tell us that marriage is a bedrock institution for preserving social stability. Maybe, maybe not. But if it is, then the more couples who are married, of whatever gender, the better off we all are. The conservatives on the Court seem to have missed that obvious point. They’re so scared of change that they can’t see when it is promoting their ultimate goals. That’s what they really got wrong.

Now, with the Court’s decision in hand, more courageous and clear-thinking conservatives can join with moderates and liberals across the country to honor the “personhood and dignity” (as Justice Kennedy put it) of every American by granting everyone the right to marry whomever they love.