Scalia’s opinions are always a good time. They are laugh-out-loud hilarious and a fun educational experience for the whole family. I mean that with all seriousness. His dissent in the United States v. Windsor case, which looked at the constitutionality of the Defense of Marriage Act, was a very abrasive and clear-cut rebuttal to the arguments in the majority opinion. He makes a really good point that it was quite unusual how the petitioners and the respondents both agreed with the District Court’s ruling that DOMA was unconstitutional, but then preceded to push the case up to the Supreme Court anyway. He thought that was very inappropriate:
We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. (Scalia, J. dissenting. p. 5)
He stresses that the Supreme Court’s power to declare a law unconstitutional is more of something that they do “incidentally—by accident, as it were…” (Scalia, J. dissenting. p. 4) It is certainly not any kind of “separate, free-standing role” at all (Scalia, J. dissenting. p. 4). He felt it would have been more appropriate for the President and Congress to “directly” engage each other in this dispute. If Congress really disagreed with the President not enforcing their laws, they have several means by which to compel the Executive.
If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Scalia, J. dissenting. p. 14)
He makes a very compelling argument that the Supreme Court, and it would seem any court, should only be dealing with cases where there are two parties with adversarial positions. If they agree on the judgment, then the dispute should be over. Although he doesn’t mention it, I have a feeling Scalia agrees with Alito that the Bipartisan Legal Advisory Group from the House of Representatives, the group that emphatically argued for DOMA’s constitutionality, had standing in the case, and would have probably been the more “proper petitioners” than the Executive branch.
I also thought there was something to Scalia’s point that the language condemning opponents of same-sex marriage may have been a little too heavy handed:
the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid.; to “impose inequality,” ante, at 22; … 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. (Scalia, J. dissenting. p. 21)
There have been a lot of strong words exchanged by both sides. It would appear that the left would very much like to prevent future attempts like this to define marriage as between a man and a woman. Might we ever compromise on some kind of explicit federal definition of marriage, like defining it as a union between two people only? The right seems very irrationally concerned with some kind of bestiality agenda. I think it would be preferable to the left to let states go ahead and allow or disallow same-sex marriages, but require other states to recognize marriages that they don’t themselves allow, just like with common-law marriage. According to the majority opinion, 42 U. S. C. §1382c(d)(2) requires states to recognize such marriages, although the law explicitly says “husband” and “wife”. It would appear that those terms will soon be regarded as just expressions.