House of Cards of Windsor

Justice Scalia registered a stinging dissent in the Windsor case, in which the Supreme Court invalidated the Defense of Marriage Act on grounds that–to be polite–are opaque. My old friend Larry Tribe, now the Left’s favorite constitutional scholar, took Scalia to task. And George Mason’s Michael Greve unloaded on Tribe with both barrels. You won’t see better pyrotechnics until the day after tomorrow. You really should read it all, but here are a couple of brief excerpts:

[B]ehold [Tribe’s] fine encapsulation of Windsor: “a combination of equal protection principles and precepts of federalism [that is] textually at home in adjudication under the Due Process Clause of the Fifth Amendment.” Wow. Most likely, this hornbook teaching of Windsor struck Justice Scalia’s mind as completely ludicrous. It so strikes much duller minds, such as mine. …

Back to Professor Tribe:

Justice Scalia faulted the majority with having inexcusably accused the Congress that enacted DOMA and the President that signed it of having “hateful hearts” when the majority in truth did no such thing. To say that only anti-gay animus, conscious or otherwise, could coherently account for a measure like Section 3 is not to accuse those who enacted or signed the measure of acting out of homophobic animus.

William Jefferson Clinton (who signed DOMA into law) is off the hook: phew. Question, though: Section 2 of DOMA compartmentalizes the gay marriage question along state lines. Can one “coherently account for” that provision as a federalism-protective measure; or is it, too, a product of an “animus” that no one may have had but that, like a devilish spirit, worked behind the legislators’ backs to produce DOMA? In other words, what happens when Windsor’s federalism argle meets its liberty-versus-animus bargle and the odd “marriage” ends, as it must, in divorce? (The same question arises, of course, over state laws and constitutions that prohibit gay marriage.) The justices who concluded this “marriage” had their fingers crossed behind their backs; they’re betting that the smitten wedding audience will pretend not to notice; and they know, and they know that everyone else knows, that they will divorce this fake union on their own terms, in their own good time.

That’s right. No more “federalism” when it is time to proclaim the constitutional right–it was always buried there in the document, somewhere!–to gay marriage.

I’ll dismount my ConLaw soapbox in recognition of the fact that law has absolutely nothing to do with this case. Rodriguez assumes that you can tell what the Supreme Court has said, and that is intentionally untrue of Windsor (as it was intentionally untrue of Lawrence). Contra Tribem [Ed: Greve has previously ridiculed Tribe’s bad Latin], Windsor is neither a “carefully cabined precedent” nor a reflection of the “delicate blend of principle and politics”–which we demand of all branches and levels of government and which, in this case in particular, the Court had a million good reasons, legal and prudential, to leave to those other, democratic institutions. No: Windsor is a submission of the Court, and the Constitution, to raw, brutal movement politics and the strategic demands of that movement.

I’m not saying that the justices—or for that matter the scholars who have cooperated in this venture and so managed to get on the right side of history—have “hateful hearts” vis-à-vis the Constitution. I’m just saying, nothing else can coherently account for this decision. And on this day of celebration, I ask of my gay, and gay-rights, and gay-rights-supportive colleagues and friends just one thing: will at least one of you stand up and say, “not this way”?

Most of the time Supreme Court justices present themselves, plausibly, as lawyers going about their technical business, applying and interpreting the law in reasonably objective fashion–recognizing, of course, that most cases that make it to the Court could rationally be decided either way. But every now and then, the political chits are called in, and the Court falls into line as part of the Progressive movement.


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