The Best (or Worst) Lines From Scalia’s Angry Dissent on the Supreme Court’s Defense of Marriage Act Ruling

The high court ruled 5-4 on Wednesday that legally married same-sex couples are entitled to the same federal benefits as straight couples. Scalia wasn’t happy about it.

Pete Marovich/ZUMAPRESS.com

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Justice Antonin Scalia is not a big fan of gay sex, gay marriage, or gay anything. His dissent to Wednesday’s decision on United States v. Windsor, in which the Supreme Court ruled, 5-4, that legally married same-sex couples should get the same federal benefits as straight ones, shows as much. (The high court’s ruling invalidates a provision of the Defense of Marriage Act that barred same-sex couples from receiving health, tax, and retirement benefits.) In a nutshell, Scalia’s dissent focuses on the court’s prime purpose and power, and he is aghast that the majority assumed the power to shoot down DOMA. (To read the seven worst things Scalia has said or written about homosexuality, click here.)

Here are some highlights from Scalia’s sarcasm-tinged, fuming dissent:

  • “That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere ‘primary’ in its role.”
  • “The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968), held that standing was merely an element (which it pronounced to be a ‘prudential’ element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one.”
  • “There is, in the words of Marbury, no ‘necessity [to] ex- pound and interpret’ the law in this case; just a desire to place this Court at the center of the Nation’s life.”
  • “Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by…what do you think? Yes: a direct confrontation with the President.”
  • “Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe.”
  • “[E]ven setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case.”
  • “[T]o 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.”
  • “In sum, 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.”

And the kicker:

  • “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.”

Read the full dissent here.

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