It only took five votes Wednesday to demolish the traditional understanding of marriage as the union of one man and one woman and to nullify the wishes of the 7 million Californians who voted to keep that definition in place. In the case United States v. Windsor, a Supreme Court majority decreed that homosexuals considered to be married in the 12 states and the District that recognize such rites are eligible to receive federal tax and other benefits, the Defense of Marriage Act, or DOMA, notwithstanding.
The liberal wing of the court, together with Justice Anthony M. Kennedy, who is moved by every wind that blows, blew a few unconvincing kisses at states' rights. This was little more than a mock marriage of convenience for the justices who typically give the 10th Amendment the back of their hands.
Justice Antonin Scalia deftly dissected Mr. Kennedy's ruling as "legalistic argle-bargle," built on a caricature of the defenders of traditional values. "In the majority's telling," wrote Justice Scalia, "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."
The one consolation is that, for now, the section of the law that enables states to decline to recognize homosexual marriages from other states will stand. But for how long? President Obama's promised fundamental transformation of America into a nation we won't recognize continues apace. Next comes a barrage of lawsuits, in both state and federal courts, to overturn the 30 or so state laws and constitutional amendments that bar homosexual marriage in those states.
Justice Scalia warns how easy it would be for the court to make a few tweaks to Windsor and invalidate the state laws and constitutional amendments limiting marriage to one man and one woman. "While the state's power in defining the marital relation is of central relevance to the majority's decision to strike down DOMA here ," Chief Justice John G. Roberts Jr. wrote in a separate dissent, "that power will come into play on the other side of the board in future cases about the constitutionality of state marriage definitions."
Chief Justice Roberts and Justice Scalia jumped the fence in the day's other big decision, Hollingsworth v. Perry, to join three reliable liberals to effectively strike down California's Proposition 8. The ruling was more about procedure than constitutional principle, as the case was set up by liberal California officials who declined to appeal a lower court decision against Proposition 8. The majority held that Proposition 8 backers, who stepped up when the state officials wouldn't do their duty, nevertheless had no standing to challenge the lower court. The lower court ruling stands.
It was a cheap legal gimmick, allowing California's governor to overturn any voter-approved amendment with which he disagrees simply by refusing to defend it in court. President Obama and Attorney General Eric H. Holder Jr. similarly refused to defend the Defense of Marriage Act, requiring Congress to hire a third-party litigator to argue on its behalf.
Wednesday's profoundly disturbing decisions came on the 10th anniversary of Lawrence v. Texas, striking down anti-sodomy laws. In his dissent to that 6-3 ruling in 2003, Justice Scalia presciently warned that if the court was unwilling to stand by laws based on moral choices, as it had done 17 years earlier in a previous sodomy-related case, morality-based state laws, such as laws against same-sex marriage, would not be sustainable, either.
Looking 10 years forward it's reasonable to expect the "anything goes" principle to take further hold. We hold out hope that the court comes to its senses before it is swallowed whole by the dark side, imposing the morality (or lack thereof) of the few on us all.
The Washington Times