Excerpts from the majority and dissenting opinions handed down by the U.S. Supreme Court in its 5-4 rulings Wednesday striking down part of the Defense of Marriage Act and leaving in place a trial court's ruling that California's Proposition 8 is unconstitutional. Read the majority opinions and the minority dissents in both cases at Links in today's Times at tampabay.com.
'DOMA is unconstitutional'
Justice Anthony Kennedy, writing the majority opinion striking down a key part of the Defense of Marriage Act:
• "DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."
• "What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."
• "DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states."
In support of DOMA
Justice Antonin Scalia, dissenting from the majority opinion:
• "The majority concludes that the only motive for this act was the 'bare . . . desire to harm a politically unpopular group.' Bear in mind that the object of this condemnation is not the legislature of some once Confederate Southern state, but our respected coordinate branches, the Congress and presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite affirmatively concealing from the reader the arguments that exist in justification."
• "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 humanigeneris, enemies of the human race."
• "That court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the 'personhood and dignity' which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures' irrational and hateful failure to acknowledge that 'personhood and dignity' in the first place. As far as this court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."
'Petitioners have no role'
Chief Justice John Roberts, writing the majority opinion that says opponents cannot challenge a trial court's declaration that California's Proposition 8 banning gay marriage is unconstitutional:
• "We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here."
• "Once Proposition 8 was approved by the voters, the measure became 'a duly enacted constitutional amendment or statute.' Petitioners have no role—special or otherwise—in the enforcement of Proposition 8. They therefore have no 'personal stake' in defending its enforcement that is distinguishable from the general interest of every citizen of California. Article III standing is not to be placed in the hands of 'concerned bystanders,' who will use it simply as a 'vehicle for the vindication of value interests.' No matter how deeply committed petitioners may be to upholding Proposition 8 or how 'zealous (their) advocacy,' that is not a 'particularized' interest sufficient to create a case or controversy under Article III."
'Right to make law rests in the people'
Kennedy, dissenting from the majority opinion:
• "The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government. The California initiative process embodies these principles and has done so for over a century ... In California and the 26 other states that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The court today frustrates that choice by nullifying, for failure to comply with the restatement of agency, a state Supreme Court decision holding that state law authorizes an enacted initiative's proponents to defend the law if and when the state's usual legal advocates decline to do so."