By now everybody and his or her significant other’s dog knows about the Supreme Court’s ruling on DOMA and Proposition 8, and — according to the Wall Street Journal — there is even more for New York’s LGBT community to celebrate this weekend. One imagines that the parade will be spectacular in more ways than one. Just don’t expect to see any of the justices using their first weekend of vacation to attend the festivities. They tend to consider public displays of support for Constitutional issues before the Court in poor taste, to put it mildly.
So, who said what about the case, and why? The Court’s official biographies can be found here.
On the side of the enlightenment, inclusiveness and equal rights for all (in order of Supreme Court seniority):
Anthony Kennedy: Harvard Law School and 9th Circuit Court of Appeals, prior to SCOTUS. Nominated by President Reagan in 1988.
Ruth Bader Ginsberg: Harvard Law and Columbia Law School. Professor of Law at Columbia and Rutgers and Judge of DC Circuit Court of Appeals, prior to SCOTUS. Nominated by President Clinton in 1993.
Stephen G. Breyer: Harvard Law and clerk for Justice Goldberg. Professor at Harvard Law and Kennedy School of Government, and First Circuit Court of Appeals, prior to SCOTUS. Nominated by President Clinton in 1994.
Sonia Sotomayor: Yale Law, U.S. District Court and 2nd Circuit Court of Appeals, prior to SCOTUS. Nominated by President Obama in 2009.
Elena Kagan: Harvard Law and clerk for Justice Marshall. Professor at University of Chicago Law and Harvard Law, prior to SCOTUS. Nominated by President Obama in 2010.
Justice Kennedy wrote the majority opinion, which overturned DOMA, citing 5 specific instances of unconstitutional violation of American citizens’ rights: 1) DOMA violates the 5th Amendment, 2) DOMA creates a “stigma” on citizens, 3) DOMA violates “due process and equal protection” as specifically protected in the Constitution, 4) DOMA humiliates children of same-sex couples, and 5) same-sex couples are denied federal benefits. In other words, this is all about equal rights before the law.
Chief Justice John Roberts, Antonin Scalia and Samuel Alito all wrote dissenting opinions. Justice Clarence Thomas joined Scalia’s dissent in whole and parts of Alito’s opinion, as is his prerogative.
The Chief Justice’s opinion stated, somewhat mildly, that before voting to overturn DOMA, he wanted "more convincing evidence that the Act’s principal purpose was to codify malice." He said he believed Congress acted constitutionally when it passed legislation to "retain the definition of marriage that, at that point, had been adopted by every State in our Nation, and every nation in the world."
Justice Scalia’s dissent, read from the bench, was incendiary by comparison. At one point, he declared the Constitution "neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol."
At the risk of assuming a very great deal upon less than perfect evidence, one can only conclude that the Court’s dissenting minority doesn’t “get” the basic American value of fairness and equal rights for all citizens.