Donate to Ace of Spades HQ!
« SCOTUS Strikes DOMA Sec. 3, Dismisses Prop 8 Case On Standing | Main | Hi-Larious....Massachusetts Wants Waiver From ObamaCare »
June 26, 2013
Scalia's DOMA Dissent
My simple rule of the thumb....if you find yoursefl on the opposing side of Scalia, rethink your position.
I wonder how many "conservatives" celebrating this decision were cheering on John Roberts yesterday in the Voting Rights Act case. Funny how quickly people can go from that to the Ginsburg school of "things I don't like are un-constitutional" school of jurisprudence.
I'm not going to get into the standing issue which is technical, though Scalia rips the majority apart there too. Here's some of what he said about the majority's decision on the merits (pdf).
There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion. But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” be-cause “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Ante, at 18. But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well established that power is?
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that 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 notes there are damn good reasons to have a federal definition of marriage and they are exactly the kind of things legislators, not judges, need to consider.
Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of 20 UNITED STATES v. WINDSOR SCALIA, J., dissenting parties of the same sex.” Ala. Code §30–1–19(e) (2011). When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)? (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so, which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision.
On second thought, read the whole thing.
Corona: "I will be kind and nice to those who understand me ..."
chemjeff - PuppyMonkeyBaby '16: "L,elle, okay maybe I will go to the pound tomorrow ..."
Aetius451AD: "466 That is actually a good thing about some dogs ..."
derit: "I wonder if the hat worn askew came about to avoid ..."
willow: "going to wander off for a while and study. have f ..."
Alberta Oil Peon: "My hubby says a backwards ball cap gives you brain ..."
Corona: "Cats purr. Dogs barf. ..."
Fritz: "I wonder if there's an enterprising business out t ..."
Aetius451AD: "Gentleman, we have usage of "An Affair to Remember ..."
Christopher Taylor: "A cat might yack once in a while but he won't chew ..."
Max Rockatansky : "Posted by: Alberta Oil Peon at February 12, 2016 0 ..."
Willy J.: "There are legitimate reasons to wear a ball cap ba ..."
Overnight Open Thread (12 Feb 2016)
Damn It Feels Good to be a Clinton
AoSHQ Podcast #133: Michael Walsh
Two great MilBlogs (XBradTC)
Very Nice Gun Rights Piece
Nature vs. Nurture (CBD)
Morning Thread (2-12-2016)
Overnight Open Thread (2-11-2016)
Democrat Debate: 9PM Eastern, PBS
Polls! Polls! Polls!
Real Clear Politics
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Primary Document: The Audio
Paul Anka Haiku Contest Announcement
Integrity SAT's: Entrance Exam for Paul Anka's Band
AllahPundit's Paul Anka 45's Collection
AnkaPundit: Paul Anka Takes Over the Site for a Weekend (Continues through to Monday's postings)
George Bush Slices Don Rumsfeld Like an F*ckin' Hammer
Top Top Tens
Democratic Forays into Erotica
New Shows On Gore's DNC/MTV Network
Nicknames for Potatoes, By People Who Really Hate Potatoes
Star Wars Euphemisms for Self-Abuse
Signs You're at an Iraqi "Wedding Party"
Signs Your Clown Has Gone Bad
Signs That You, Geroge Michael, Should Probably Just Give It Up
Signs of Hip-Hop Influence on John Kerry
NYT Headlines Spinning Bush's Jobs Boom
Things People Are More Likely to Say Than "Did You Hear What Al Franken Said Yesterday?"
Signs that Paul Krugman Has Lost His Frickin' Mind
All-Time Best NBA Players, According to Senator Robert Byrd
Other Bad Things About the Jews, According to the Koran
Signs That David Letterman Just Doesn't Care Anymore
Examples of Bob Kerrey's Insufferable Racial Jackassery
Signs Andy Rooney Is Going Senile
Other Judgments Dick Clarke Made About Condi Rice Based on Her Appearance
Collective Names for Groups of People
John Kerry's Other Vietnam Super-Pets
Cool Things About the XM8 Assault Rifle
Media-Approved Facts About the Democrat Spy
Changes to Make Christianity More "Inclusive"
Secret John Kerry Senatorial Accomplishments
John Edwards Campaign Excuses
John Kerry Pick-Up Lines
Changes Liberal Senator George Michell Will Make at Disney
Torments in Dog-Hell
The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
Movable Type 2.64