In the end, he seems to hold DOMA unconstitutional because he is convinced that the purpose of the statute was to stigmatize gay people, and indeed there is some precedent for the idea that statutes based on animus are unconstitutional. But he does not provide a very convincing account of the motives of the legislators. Isn’t it possible to oppose same-sex marriage without hating gay people? …
So there is this vague idea that certain constitutional interests standing alone may not invalidate statutes, but may suffice when combined together. Something like this idea might ultimately be the basis of Kennedy’s opinion. Gay people do not form a suspect class, but they almost do. Same-sex marriage is not a longstanding tradition, but same-sex relationships are. Federalism principles are not broken but they are eroded. Put together three almost violations, and you have a real violation.
-ERIC POSNER, a professor at the University of Chicago Law School, writing in Slate
• • •
Ten years ago to the day, dissenting in the case of Lawrence vs. Texas, Justice Antonin Scalia played the role of Cassandra, warning darkly — and at the time, it seemed, hyperbolically — that the ruling invalidating laws against homosexual conduct would lead inexorably to creation of a constitutionally protected right to same-sex marriage.
On Wednesday, dissenting in the case of U.S. vs. Windsor, Chief Justice John Roberts was more Canute than Cassandra. Like the Scandinavian king said to have sought in vain to hold back the tides, the chief justice took pains to emphasize not the potential reach of the majority’s decision to invalidate the Defense of Marriage Act but its actual limits.
“While I disagree with the result ... I think it more important to point out that its analysis leads no further,” Roberts wrote of the majority opinion. “The court does not have before it, and the logic of its opinion does not decide, the distinct question whether the states ... may continue to utilize the traditional definition of marriage.”
Scalia’s response boiled down to: Good luck with that. Nice tides you’ve got there, Chief. …
Let’s hope he’s right, once again. The shoe can’t drop soon enough.
- RUTH MARCUS, Washington Post
* * *
‘Come and walk in my shoes’
The Supreme Court has stuck a dagger into the heart of the Voting Rights Act. Although the court did not deny that voter discrimination still exists, it gutted the most powerful tool this nation has ever had to stop discriminatory voting practices from becoming law. Those justices were never beaten or jailed for trying to register to vote. They have no friends who gave their lives for the right to vote. I want to say to them, “Come and walk in my shoes.”
I disagree that just because the incidence of voter discrimination is not as “pervasive, widespread or rampant” as it was in 1965 that contemporary problems are not a valid basis for scrutiny. In a democracy, one act of voter discrimination should be too much.
Also, the purpose of the Voting Rights Act is not to increase the number of minority voters or elected officials. That is a byproduct of its effectiveness. The purpose of the act is to stop discriminatory practices from becoming law. Just hours after the court’s decision was announced, Texas said it would immediately implement the same voter identification law declared illegal by the Justice Department.
-U.S. Rep. JOHN LEWIS, D-Georgia, writing in the Washington Post
The Opinion section is produced by the Editorial Department to foster discussion about key issues. The Editorial Board represents the institutional voice of the Star Tribune and operates independently of the newsroom.