My fellow Son of Xavier, Antonin Scalia, did not like the majority decision one little bit:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution [the Supreme Court] in America.
As I have observed before, the Constitution does not forbid the government to enforce traditional moral and sexual norms.
A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.
But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.
I thought Justice Scalia might have already thrown in the towel, since in his dissent in Lawrence v Texas, he more or less said that if we can’t prosecute them for sodomy, we might just as well let them get married:
If moral disapprobation of homosexual conduct is “no legitimate state interest” for purposes of proscribing that conduct…what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising “the liberty protected by the Constitution”? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.
I don’t know about the sterile, but personally, I think it would be a good idea if the elderly were not allowed to marry, but that’s just me as I’m getting elderly.
via DOMA Unconstitutional – Scalia Unhappy – Let’s Get Practical – Forbes.