Supreme Court DOMA Ruling: The Court's DOMA Ruling Should Scare You to Death, Even If You Agree With It


The American concept of ordered liberty is based on a certain degree of transparency regarding governmental action. The state is a powerful institution with the benefit of overwhelming force at its disposal.  Examples abound demonstrating the inherent nature of institutions with a monopoly on force to amass increasingly greater power at the expense of the governed. Part of the American remedy to this aggrandizement consists of an expectation that government give reasons for its actions. The Supreme Court pays homage to this tradition by issuing a written rationale for its decision. However, the governed may take small comfort in the reasoning provided by Justice Kennedy in the United States v Windsor decision (a.k.a. the DOMA ruling). Far from the intellectual clarity one would expect from one of the best legal minds in the country, Justice Kennedy spouts constitutional law buzzwords throughout a thinly veiled outline of his personal preferences on the issue of gay marriage. Regardless of whether Kennedy's ultimate result agrees with your personal politics, we should be wary of the conception of government implied by Kennedy's reasoning.

Kennedy's most concerning passages involve his lackluster attempts at grounding his conclusion in applicable legal precedent.  In a diatribe that would earn any first-year law student a failing grade, Kennedy flirts with two major legal theories of protecting constitutional rights: equal protection and substantive due process.  In the equal protection vein of reasoning, Kennedy notes that Congress has no "legitimate" reason to single out homosexuals as subject to the restrictions of DOMA. He never fully develops this notion because of his desired conclusion. Because proper rational basis review would require Kennedy to consider any possible legitimate non-discriminatory reason Congress might have possessed for passing the law, he would have needed to perform intellectual back flips to avoid upholding the law. Rational basis review rarely results in any law being held unconstitutional. A half-hearted salute to rational basis review was a more palatable option for him.

Kennedy's mulligan in legal reasoning consists of painting DOMA as a violation of the "liberty" protected by the Fifth Amendment Due Process clause. However, Kennedy never fully develops this line of reasoning either. According to Supreme Court precedent, the fundamental liberty interests protected by that language are extremely specific and defined expressions of constitutional rights. For example, while precedent gives a person has a right to "possess" pornography, no person has a fundamental right to actually buy pornography. The sort of clearly defined boundaries characteristic of fundamental liberty interests are clearly missing from Kennedy's passing reference to the "liberty" concept embodied in the Fifth Amendment. Additionally, he never engages in the Strict Scrutiny review that would accompany a true violation of a fundamental liberty. Undoubtedly, his vagaries permit his conclusion. Fundamental liberties are generally grounded in well established societal conventions (personal privacy, right to direct the education of your children, etc.). If Kennedy had attempted to carve out a novel fundamental liberty, he would bump against centuries of societal conventions across the world that marriage involved a man and woman. Fundamental liberties generally do not have this air of novelty.  

The naked revelation that results from peeling the legalese away from Kennedy's reasoning is that Kennedy shaped an opinion to fit his conclusion. While this appalling legal reasoning should concern academics in the ivory towers of law schools across the country, the citizenry should have far more concrete concerns. Regardless of whether you support the court's ruling Wednesday, Kennedy's opinion represents a conception that government can, and should, do whatever it takes to accomplish desired policy ends. When the constitutionally defined avenues for change do not yield timely progress, Kennedy's solution would be to disregard the political ties that bind the process. Given the recent IRS scandal and the concerns surrounding the NSA surveillance program, it seems that Kennedy is not alone in desiring a government that disregards existing checks in the name of political or social expediency. This conception of government is more conducive to totalitarianism than freedom. While some may see the downfall of DOMA as the rise of true equality, I cannot help but glimpse the seed of tyranny.