Today’s huge news from the Supreme Court, which struck down the Defense Of Marriage Act (DOMA) and returned California’s Proposition 8 ban on gay marriage to the lower court that overturned it, shines in the shadow of yesterday’s decision to gut the Voting Rights Act of 1965. In his dissenting opinion on the DOMA case, Justice Antonin Scalia made what is probably the most ridiculous statement that will be made about the case, Michele Bachmann notwithstanding. The day after he struck down a law that was passed unanimously in the Senate, and nearly unanimously in the House, Scalia opined that the Court had no right to subvert the democratic will of the people by overturning the hotly-contested Defense Of Marriage Act.
To be clear, in overturning Section 4 of the Voting Rights Act of 1965, the conservatives on the Supreme Court badly overstepped their bounds, invalidating a law that was exhaustively researched and debated, and overwhelmingly agreed to by Congress, on the grounds that they didn’t like the way Congress carried out its constitutionally-designated responsibility to enforce the 15th Amendment. There was no underlying constitutional question, they simply disagreed with the formula Congress uses to determine which jurisdictions must request preclearance in order to change their election laws. If you doubt this, then ask yourself why the court didn’t suggest a formula of its own, and answer yourself by saying “That’s not their job, it’s Congress’ job.”
DOMA, on the other hand, is a law that could never pass today, because, you know, things have changed since
1965 1996. Increasing majorities of Americans support marriage equality, and just overwhelmingly voted, in November, for the party that supports marriage equality. But none of that really matters (except as a refutation of Scalia’s “democratic will” argument), because unlike the Voting Rights Act, DOMA is a clear violation of the “equal protection” clause of the Fourteenth Amendment, and the due process guarantee of the Fifth Amendment. That didn’t stop Justice Scalia from making the argument he should have made yesterday in his dissenting opinion on the DOMA case:
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 in America.
Diseased root, heal thyself.
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