Wednesday, June 26, 2013

Justice Antonin Scalia's Dissent in United States v. Windsor

I just read Scalia's dissent in today's DOMA ruling.

The full case in PDF is here.

It takes awhile to wade through these things, and I've still got more studying to do.


Here's the conclusion.
In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will no do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
Interestingly, responses to Scalia don't address his substantive points as much as simply dismiss him as a bigot. Paul Waldman at the American Prospect, is a case in point, and the homosexual Josh Barro, at Business Insider, "Antonin Scalia's Gay Marriage Dissent Is Dripping With Contempt and Sarcasm."

Seriously. A good indicator that Scalia has destroyed the majority's holding is the visceral ad hominem reactions to be found on the radical left, for example:
I’ve never understood the whole “Scalia is so brilliant” thing. I’ve been hearing it for years and years, particularly from certain law school profs (who were raging unreconstructed old school liberals, but who loved to let us all know that they found “Nino” quite charming at cocktail parties). I’m a corporate lawyer, but my father was a federal appellate civil rights lawyer with the NAACP Legal Defense & Educational Fund for almost 40 years. He argued cases in front of SCOTUS including after Scalia was appointed. My father’s impression of him based on appearing before him seems totally consistent with my read of Scalia’s claptrap opinions – he’s a somewhat intelligent but extraordinarally belligerent narcissist. Reading his stuff, for me, provokes revulsion at his immaturity – which brings disrepute to the institution – and whiplash at his rampant inconsistency.
In any case, Scalia's in the minority of a deeply divided Court. Perhaps we'll return to this issue if public opinion shifts. There's clearly large remaining division on the issue nationwide, and once other moral barriers begin to fall we may well see a shift in public opinion back toward traditional morality. Trends in support for Roe v. Wade give conservatives lots of hope on that score.

For now, though, the homosexual thugs have won the day.

More at Althouse, "DOMA as 'a bare congressional desire to harm a politically unpopular group'."