Kennedy was right, and Scalia was wrong on Windsor

Congress did act out of a desire to harm a politically unpopular group . . . they said so themselves.

In his Windsor ruling that invalidated section 3 of the Defense of Marriage Act (DOMA), which has naturally been roundly criticized by the right, Justice Kennedy’s opinion hinged on the following passage:

“DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Numerous folks across the rightosphere have taken umbrage at this statement, claiming that Kennedy is besmirching the motives of any and all who desire to defend a traditional view of marriage.

That’s simply not true.

There are, of course, a wide variety of motives – secular and religious – individuals across this country have for arguing in favor of “traditional marriage.” and Kennedy’s language says nothing about them. What he does assert is that the motive of Congress itself in passing DOMA were – in large part, at least – motivated by “a bare congressional desire to harm a politically unpopular group.” (emphasis mine)

The following are a series of quotes from the Judiciary Committee Report on HR 3396 (DOMA), when referring the bill to the House and recommending its passage. This document constitutes the most comprehensive expression in existence of actual, congressional intent in putting forward this bill. Here are some of the Judiciary Committee’s justifications for urging passage of DOMA:

“to the extent that federal law has simply accepted state law determinations of who is married, a redefinition of marriage in Hawaii to include homosexual couples could make such couples eligible for a whole range of federal rights and benefits.”

“Of course, the foregoing discussion [of the left's attempts to move SSM forward via the courts] would hardly support—much less necessitate—congressional action if the Committee were supportive of (or even indifferent to) the notion of same-sex ‘marriage.’ But the Committee does not believe that passivity is an appropriate or responsible reaction to the orchestrated legal campaign by homosexual groups to redefine the institution of marriage through the judicial process. H.R. 3396 is a modest effort to combat that strategy.”

“Civil laws that permit only heterosexual marriage reflect and honor a collective moral judgment about human sexuality. This judgment entails both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality.”

“If Hawaii (or some other State) were to permit homosexuals to ‘marry,’ these marital benefits would, absent some legislative response, presumably have to be made available to homosexual couples and surviving spouses of homosexual ‘marriages’ on the same terms as they are now available to opposite-sex married couples and spouses. To deny federal recognition to same-sex ‘marriages’ will thus preserve scarce government resources, surely a legitimate government purpose.”

“While there is controversy concerning how sexual ‘orientation’ is determined, ‘there is good reason to think that a very substantial number of people are born with the potential to live either gay or straight lives . . . Maintaining a preferred societal status of heterosexual marriage thus will also serve to encourage heterosexuality”

I realize most of the commenters on this site have a personal preference for traditional marriage, but regardless of your own position on traditional vs. same-sex marriage, could someone explain how the above quotes do not constitute an expressed desire to “harm a politically unpopular group”? It seems to me fairly obvious that they constitute exactly what Justice Kennedy said they did. Kennedy  wrote that “no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.” That’s very different than what Scalia accused him of writing – that no such legitimate purpose exists. That’s something Kennedy never wrote.

Of course, Congress deliberately acts to “harm politically unpopular groups” all the time. Obamacare, for example, is rife with such acts against a variety of politically unpopular groups – the rich, the young, large business owners, physician-owned hospitals, the uninsured-by-choice, and on and on it goes . . . But simply because Congress does this on a routine basis does not mean it should . . . nor does it mean we on the right should be party to such abuses.

Scalia argues that ”‘It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.’ United States v. O’Brien, 391 U. S. 367, 383 (1968). Or at least it was a familiar principle.” But the “familiar principle” he’s talking about is a reference to individual members of Congress giving speeches about their motives for voting this way or that on a given bill. That’s very different than what we see above – the stated intent of the House Judiciary Committee in reviewing the bill and recommending it to the full House for passage . . . a recommendation without which it would never have been brought to the floor, voted on, passed, or signed.

Justice Scalia wrote in his dissent that “there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation.” But the simple fact is that these “other rationales”  were not the ones emphasized by Congress when it passed the Act.

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