I actually think there are reasonable people on both sides of the same-sex marriage debate. Finally, the biggest thing wrong with Kennedy’s opinion is that its unhinged moralism—based as it is on a conception of dignity or personhood that’s has no real constitutional anchor—might make solid citizens believe that those who disagree with him—including the overwhelming majority of members of our Congress who voted for the DOMA—are hatefully evil, so evil that their opinions deserve no place under our law or our Constitution. Talk about a “conversation stopper,” not to mention a civic-engagement stopper. Consider the conclusion of Justice Scalia’s “cheeky” dissent:

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. 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.

Articles by Peter Lawler

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