Scalia vents over same-sex marriage rulings

REUTERS/Kevin Lamarque
Justice Antonin Scalia did not restrain himself from expressing just what an abomination the majority had perpetrated.

The excitement and confusion generated by Wednesday’s big Supreme Court rulings on same-sex marriage may have distracted from a couple of interesting points and problems.

The Scalia dissent

In dissenting from the 5-4 ruling that struck down the federal Defense of Marriage Act, Justice Antonin Scalia did not restrain himself from expressing just what an abomination the majority had perpetrated. His word choices were strong, but nothing was stronger than his invocation of the Latin phrase “hostes humani generis.”

The phrase translates as “enemies of humanity.” It derives from the days of piracy on the high seas. Pirates were classified as enemies, not of any particular nation but of all humankind, so captains of law-abiding vessels who captured pirates were authorized to court martial them and, if they were found guilty, to hang them. If we take Scalia quite literally, he is saying that this is similar to treatment that the Supreme Court has imposed on any poor misbegotten souls who want to defend the traditional limitation of marriage to couples consisting of one man and one woman. Here’s the passage from Scalia’s dissent:

To 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 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. 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.

National Journal highlights a couple of other high moments of venting spleen from the Scalia dissent, including one in which he accuses the majority of having completely overthrown proper judicial modesty and being bound only by “its sense of what it can get away with.”

Therein doth Scalia apparently also strike down my old 8th-grade grammar teacher’s rule against ending a sentence with a preposition.

The tone of Scalia’s dissent also prompted satirist Andy Borowitz to write a fake news story headlined “Scalia Arrested Trying to Burn Down Supreme Court.”

Same-sex marriage availability doubles

Because California has such a huge population, the latest developments roughly doubles the number of Americans who live in states where same-sex marriage is legal. Nate Silver does the numbers, and also points out that with this expansion, the right to marry a member one’s own sex is now available to a larger portion of the U.S. population than the European population. Writes Silver:

By August, about 95 million Americans out of a population of 314 million — about 30 percent — will live in states where same-sex marriage is legal. In Europe, that number is 169 million residents out of a population of 736 million, or about 23 percent.

Different federal treatment across state lines

This is roughly the opposite of the way Scalia describes the situation, but if I understand the new state of play, with DOMA gone, the federal government will treat a same-sex couple as married or not, depending on the law in their state.

A same-sex couple in State A, where the couple is allowed to marry (Minnesota, for example), will have access to a great many federal benefits and privileges that will be denied to a same-sex couple in State B (Wisconsin, for example), where marriage is limited to opposite sex couples.

There are more than a thousand such benefits. For example, the Minnesota couple can get the benefit (and often substantial value) of filing their federal taxes jointly, while the Wisconsin couple cannot. When one member of the Minnesota couple dies, the estate of the deceased spouse can pass to the surviving spouse without being subject to the federal inheritance tax. For the Wisconsin couple, the tax will apply. There are big implications for Social security benefits and many others.

It doesn’t seem likely to me that this can go on indefinitely. Based on the analyses I have heard, no one is quite sure what might happen to a same-sex couple who got married in a state where such marriage is legal, then moves to a state where it is not legal.

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Comments (16)

  1. Submitted by Ray Schoch on 06/27/2013 - 11:49 am.

    The last paragraph

    …seems on the mark to me. Eventually, those states where gay marriage remains illegal seem likely to have those statutes challenged in federal courts, and as the document itself says quite plainly, the Constitution trumps state law. I’ve no idea how long it will take, nor how much hand-wringing and predictions of the apocalypse will take place (that is, how much more than has already taken place), but my own uneducated guess is that gay marriage will be legal all over the country in a generation or less, Scott Walker and Antonin Scalia notwithstanding.

    Twice-divorced myself, I welcome gay and lesbian couples to the world of divorce court, lawyers, asset-splitting, child support, alimony and custody-of-children arrangements/arguments. Enjoy!

    • Submitted by David Wintheiser on 06/27/2013 - 04:03 pm.

      DOMA, as a whole, is not struck down…

      …and the last paragraph shows what the next step will be.

      The Supreme Court did not declare the entirety of the DOMA unconstitutional; it simply affirmed the Second Circuit’s finding that Section 3, the section where ‘marriage’ is defined as being between a man and a woman, was unconstitutional.

      Section 2, which allows states where gay marriage is not legal to refuse to recognize marriages performed in states where it is legal, still remains on the books — at least until the situation that Mr. Black describes in his final paragraph is brought into court where Section 2 is challenged based on the Constitution’s Full Faith and Credit Clause (Article IV, Section 1).

  2. Submitted by jody rooney on 06/27/2013 - 12:20 pm.

    Wouldn’t federal benefits go to

    anyone with a valid state marriage license?

    Back when there was a significant difference in the age of consent in other states were all marriages recognized by all states even if the married couple was underage in a state that they moved to?

    I don’t know the answer and haven’t read the opinions but it seems that the court was leaning toward making marriage a state issue.

    Many moon’s ago my friends sister moved with her husband to Mississippi. She hadn’t changed her name when she got married but the county where she lived refused to issue a drivers license except with her husband’s last name, which of course wasn’t her legal name. The good news was she was an attorney.

    Hopefully in the future Scalia’s tirade will become just part of a funny story about the eccentricities of the supreme court Justices.

  3. Submitted by Frank Phelan on 06/27/2013 - 12:44 pm.

    Au Contraire

    It is a myth that the english language does not permit sentences to end with a preposition. Otherwise, we end up with garbled sentences like the following from Winston Churchill who remarked thusly on this very subject:

    That is the sort of English up with I will not put.

  4. Submitted by Paul Brandon on 06/27/2013 - 01:03 pm.


    Scalia really ought to study some.
    Depending upon what he means by “in our society for most of its existence”, there have been many forms of marriage.
    Of course, he may consider that our society began in 1980 with reruns of 1950’s TV shows.

  5. Submitted by Neal Rovick on 06/27/2013 - 01:42 pm.

    The DOMA decision was the statement that each person legally married under the law of a state should have the same rights under federal programs as every other legally married person in that state.

    It require a certain flexibility of mind to say with respect to DOMA:

    (quote )

    “We have no power to decide this case,” Scalia wrote. “And even if we
    did, we have no power under the Constitution to invalidate this
    democratically adopted legislation. The Court’s errors on both points
    spring forth from the same diseased root: an exalted conception of the
    role of this institution in America.”

    (end quote)

    When one considers the over-turning of the Voter’s Rights Act just the day before, and extending back to deciding to stop the recount in the Bush-Gore, it seems very easy to overturn the results of votes.

    Perhaps he should take some time on his vacation to review the website of the Supreme Court and make some changes. The website currently reads:


    “EQUAL JUSTICE UNDER LAW”-These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution….

    …The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of “judicial review” has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a “living Constitution” whose broad provisions are continually applied to complicated new situations….

    (end quote)

  6. Submitted by Rachel Kahler on 06/28/2013 - 08:05 am.

    Scalia is Five

    Definitely not as amusing as “Jeffty is Five,” but at least as sad, albeit in different ways.

    The problem is this: the Supreme Court justices are not perfect. They’re not truly free of their own prejudices or political slants. That’s why there are 9 of them–hopefully to even out this problem of being only human. Scalia is clearly not speaking wisdom here. There is no way to justify his position in light of the equal protection clause. He’s speaking from personal prejudice. Fortunately or unfortunately, removing him based on this sort of Supreme BS isn’t likely, as “good behavior” doesn’t technically extend to competency. However, the only impeached SC justice was impeached under accusations of political influence of decisions, so… I don’t know if I’d like to see that precedent continued, as every political wind could affect the Court–even more so than it does now. Ultimately, though, the Senate acquitted the impeached justice, so it was a moot circus, anyway.

  7. Submitted by Eric Ferguson on 06/28/2013 - 03:28 pm.

    The scary part

    If there wasn’t one conservative who was able to get over his conservatism to find one area where he supports civil rights, DOMA would have been upheld by the 5-4 majority we’ve learned to expect. That’s how close this was. Scalia’s ranting dissent was on the edge of being the majority opinion.

  8. Submitted by Lauren Mayer on 07/09/2013 - 09:48 am.

    Scalia’s ranting

    Scalia isn’t just a ranting, grumpy old man, he’s mean-spirited and intellectually inconsistent, not to mention homophobic, arrogant, and a whole host of other adjectives I’ll refrain from using since I’m not that mean-spirited; so I’ve set my ranting to music, “The Scalia Song” –

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