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.