How Kennedy beat Scalia

His opinion was a mess -- but the liberal justices weren't about to point that out and risk losing his vote

Topics: Anthony Kennedy, Antonin Scalia, Supreme Court, LGBT, Defense of Marriage Act, Bill Clinton, Gay Marriage, Marriage equality, LGBT Rights, Editor's Picks, DoMA, ,

How Kennedy beat ScaliaSupreme Court Justices Anthony Kennedy, Antonin Scalia (Credit: AP/Damian Dovarganes/Haraz N. Ghanbari)

Reading the Supreme Court’s opinions in the same-sex marriage cases felt like watching a couple of crazy old uncles bicker. I’m a law professor, and I’ve been reading Supreme Court opinions for years. Justice Anthony Kennedy, who wrote the majority opinion striking down the Defense of Marriage Act, was his typical self: bloviating, self-important, irritating even when he’s right about everything just because he’s so damn pleased with himself. Antonin Scalia, who dissented, also did not disappoint: a snarling, grumpy old man, full of viciously funny one-liners.

Don’t misunderstand me: This was a great day. Same-sex marriage came to California, and DOMA, a stupid, nasty law, is history. The Court acted well. But the judges’ opinions leaven the heroic tale with some comic relief.

DOMA declares, in pertinent part, that the word “marriage,” wherever it appears in the U.S. Code, “means only a legal union between one man and one woman as husband and wife.” The rule applies indiscriminately across all federal laws, producing some weird results. Federal ethics rules bar officials from participating in matters in which their spouses have a financial interest — but not if they’re same-sex spouses. It is a federal crime to assault, kidnap or kill a member of the immediate family of a federal official in order to influence or retaliate against that official — but not if you do that to a same-sex spouse. Ditto Social Security, federal pensions, taxation of inheritances (which was the issue in today’s case), and over a thousand other provisions.

Justice Kennedy had no trouble recognizing this for what it is: a “bare desire to harm a politically unpopular group.” The statute lashes out at same-sex couples with no attention at all to the purposes of any of the underlying laws it affects. The Constitution’s guarantee of equal protection was enacted with precisely that kind of law in mind.

DOMA was enacted by huge majorities in 1996. But that was a time when gay people were still the objects of pervasive and, more important, unquestioned prejudice: A few years before, when newly elected President Bill Clinton tried to end their exclusion from the military, the public reaction was so negative that he had to settle for the lousy, and now abandoned, “don’t ask, don’t tell” compromise. After the Hawaii Supreme Court made it seem likely that that state was about to adopt same-sex marriage, DOMA was enacted – not to address any existing problem, but to put political pressure on Clinton.



Republicans knew that the law would put Clinton in a difficult spot: either veto the law, and be branded as favoring same-sex marriage (which only a third of Americans then supported), or sign it and alienate his gay supporters, in either case hurting his chances of reelection. He chose the second option, and got reelected anyway. And so we were stuck with this ridiculous law. Congress wasn’t thinking about solving a policy problem at all, and it certainly wasn’t thinking about the actual human beings whom this law was going to injure. It lashed out at gay people in this crazy way for the sake of pure political posturing.

So Kennedy could just have disposed of the case by invoking the rule that a bare desire to harm isn’t sufficient basis for a law. But he’s got another hobbyhorse: federalism. For decades, Kennedy has been in love with the idea of states’ rights, and he has repeatedly voted on that basis to hobble important federal laws, most recently the Voting Rights Act, on that basis.

One argument against DOMA was that it somehow invaded states’ rights, because marriage was traditionally a state matter. But could it really be true that, whenever a federal law uses the word “marriage” to define the scope of some federal program, it is obligated to follow state law? There’s an obvious counterexample: immigration. In most states, the government doesn’t involve itself in the reasons a couple marries, even if there’s no love involved and the marriage is primarily a business transaction or a matter of convenience. But when people marry for immigration purposes, the federal government has no trouble deeming the marriage “fraudulent” – a marriage that remains valid under state law. The Immigration and Customs Enforcement agency doesn’t interfere with traditional state functions because it leaves the state free to recognize, for its own purposes, any marriage it likes. But it won’t grant legal residency to immigrants it believes married only to secure the benefit.

Yet Kennedy insists that it’s necessary to discuss “the extent of the state power and authority over marriage as a matter of history and tradition.” He writes that “the Federal Government, through our history, has deferred to state law policy decisions with respect to domestic relations.”  We get pages of details documenting these facts. No doubt they are true. But why are they relevant? Kennedy doesn’t give us a clue.

Scalia pounces. Kennedy’s opinion, Scalia observes, “starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion.” Then Kennedy says that it’s unnecessary to talk about federalism, but keeps harping on the states’ rights issue even after that.

I will bet that the liberals who made up Kennedy’s majority could see what a mess his opinion is, but were afraid to point that out to him for fear of offending him and losing his vote. Scalia is right about the opinion’s “disappearing trail of its legalistic argle-bargle.” It is such a fog that lower courts will easily be able to distinguish it when the potent question of whether same-sex couples have a right to marry – the question the Court ducked in its decision in Perry v. Brown, the California marriage case – comes up. “Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.”

Scalia is fun to read, isn’t he? But he’s less fun when he tries to justify the law itself. Here’s his best shot: “DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage.” What happens, he asks, to the marriage of a couple who wed in New York and move to Alabama? He thinks DOMA is a sensible response to this problem. But there are federal laws and regulations that already deal with those questions, which will still arise with underage marriages, cousin marriages, common-law marriages, and the like. Scalia doesn’t explain why same sex marriage is any different.

Each justice whacks the other very effectively. Each of them is right about the other’s cluelessness. It’s like watching the Two Stooges. But, once again, all this is comic relief. The real story, which it’s easy to lose track of amid all the bad legal arguments, is that of the thousands of gay couples who have been casually hurt by this malignant, silly law. If you’re a married same-sex couple, just reconciling your state tax return (which recognizes your marriage) with the federal one (which doesn’t) has been a nightmare. Getting health insurance for your family has been a big, scary burden.

Now all that is suddenly over. The Court got to the right place clumsily. But it got there. Law professors like me can grouse about the reasoning. But it’s more important that the law will now facilitate the daily lives of ordinary people. That’s what law is for, isn’t it?

Andrew M. Koppelman is John Paul Stevens Professor of Law and Professor of Political Science at Northwestern University. His latest book is The Tough Luck Constitution and the Assault on Health Care Reform.

More Related Stories

Featured Slide Shows

  • Share on Twitter
  • Share on Facebook
  • 1 of 11
  • Close
  • Fullscreen
  • Thumbnails

    Ten spectacular graphic novels from 2014

    Beautiful Darkness by Fabien Vehlmann & Kerascoët
    Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

    Ten spectacular graphic novels from 2014

    Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
    Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

    Ten spectacular graphic novels from 2014

    Here by Richard McGuire
    A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

    Ten spectacular graphic novels from 2014

    Kill My Mother by Jules Feiffer
    The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

    Ten spectacular graphic novels from 2014

    The Motherless Oven by Rob Davis
    This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

    Ten spectacular graphic novels from 2014

    NOBROW 9: It's Oh So Quiet
    For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

    Ten spectacular graphic novels from 2014

    Over Easy by Mimi Pond
    When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

    Ten spectacular graphic novels from 2014

    The Shadow Hero by Gene Luen Yang and Sonny Liew
    You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

    Ten spectacular graphic novels from 2014

    Shoplifter by Michael Cho
    Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

    Ten spectacular graphic novels from 2014

    Through the Woods by Emily Carroll
    This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

  • Recent Slide Shows

Comments

Loading Comments...