June 26, 2013

I was skimming the dissents in today’s Supreme Court decision striking down DOMA earlier (here’s a PDF). This passage stuck out to me. Justice Alito doesn’t seem to see what the big deal is:

In any event, §3 of DOMA, in my view, does not encroach on the prerogatives of the States, assuming of course that the many federal statutes affected by DOMA have not already done so. Section 3 does not prevent any State from recognizing same-sex marriage or from extending to same-sex couples any right, privilege, benefit, or obligation stemming from state law. All that §3 does is to define a class of persons to whom federal law extends certain special benefits and upon whom federal law imposes certain special burdens. In these provisions, Congress used marital status as a way of defining this class–in part, I assume, because it viewed marriage as a valuable institution to be fostered and in part because it viewed married couples as comprising a unique type of economic unit that merits special regulatory treatment. Assuming that Congress has the power under the Constitution to enact the laws affected by §3, Congress has the power to define the category of persons to whom those laws apply.

See? It was all just a wacky misunderstanding! It wasn’t the Defense of Marriage Act, it was the Definition of Marriage Act! Congress simply wanted to define of a category of persons for the fun of it, no harmful motivations whatsoever. Wherever did people get the silly idea that a federal law specifically defining marriage as between a man and a woman might prevent states from legalizing same-sex marriage??

Another thing: in his dissent, Justice Scalia does the ol’ rhetorical trick of crossing out words and injecting replacement words to prove a point:

Scalia DOMA dissent

Is this normal for a legal opinion? I have no idea.