Page 44 - AVN August 2013

LEGAL NEWS
“When the Court declared a constitutional right to
homosexual sodomy, we were assured that the case had
nothing, nothing at all to do with ‘whether the govern-
ment must give formal recognition to any relationship that
homosexual persons seek to enter.’ ... Now we are told that
DOMA is invalid because it ‘demeans the couple, whose
moral and sexual choices the Constitution protects,’ with
an accompanying citation of Lawrence. It takes real cheek
for today’s majority to assure us, as it is going out the
door, that a constitutional requirement to give formal
recognition to same-sex marriage is not at issue here—
when what has preceded that assurance is a lecture on how
superior the majority’s moral judgment in favor of same-
sex marriage is to the Congress’s hateful moral judgment
against it. I promise you this: The only thing that will
‘confine’ the Court’s holding is its sense of what it can get
away with.”
The sky is falling! Justice Scalia might remind you of a
scene from F. Scott Fitzgerald’s masterpiece, The Great
Gatsby. Tom Buchanan, husband of Jay Gatsby’s lost love,
explains to Gatsby during the summer of 1922 about this
“wonderful book” advancing the proposition that Aryans
must protect their race. The “wonderful book,” at least
according to Tom, taught that if Aryans failed to protect
their race, it could even lead to intermarriage between the
races. Justice Scalia did not mention Loving v. Virginia, the
1967 Supreme Court decision that struck down Virginia’s
prohibition against interracial marriage; Justice Kennedy’s
majority did. More significantly, his opinion repeatedly
defined the importance of not demeaning same-sex
marriages that many states (whose station it is to define
marriage) decided to recognize:
“The States’ interest in defining and regulating the
marital relation, subject to constitutional guarantees, stems
from the understanding that marriage is more than a
routine classification for purposes of certain statutory bene-
fits. Private, consensual sexual intimacy between two adult
persons of the same sex may not be punished by the State,
and it can form ‘but one element in a personal bond that is
more enduring.’ [citing Lawrence v. Texas] By its recogni-
tion of the validity of same-sex marriages performed in
other jurisdictions and then by authorizing same-sex unions
and same-sex marriages, New York sought to give further
protection and dignity to that bond. For same-sex couples
who wished to be married, the State acted to give their law-
ful conduct a lawful status. This status is a far-reaching
legal acknowledgment of the intimate relationship between
two people, a relationship deemed by the State worthy of
dignity in the community equal with all other marriages. It
reflects both the community’s considered perspective on the
historical roots of the institution of marriage and its
evolving understanding of the meaning of equality.”
Justice Kennedy beat the word “dignity” to death, as
was appropriate. The Constitution simply does not permit
second-class citizens. For that reason, Justice Kennedy’s
majority opinion found that the Defense of Marriage Act
was unconstitutional to the extent that it forbade the
federal government from giving less dignity to some
marriages recognized by New York law than others. United
States v. Windsor, ___ U.S. ___, 2013 WL 3196928 (June
26, 2013).
Justice Scalia is a committed and fierce opponent of
what the author’s good friend Dr. Marty Klein refers to in
his wonderful book, America’s War on Sex: The Attack on
Law, Lust, & Liberty (Praeger Publishers, 2006) as
“unauthorized sex.” He assuredly will continue to be.
Justice Scalia obviously is unable to separate the views
on sexuality of the Roman Catholic Church from the
duties imposed upon him by his oath of his constitutional
office; Justice Kennedy has done so. Figure that they will
continue to engage in that battle as long as they—each 77
years of age—serve out their lifetime tenures.
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