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Scalia Kennedy

It should not be overlooked that the trail to yesterday’s decision in United States v. Windsor began in Canada: “The State of New York recognizes the marriage of New York residents Edith Windsor and Thea Spyer, who wed in Ontario, Canada, in 2007.” But the trail is actually much older and longer than that.

The Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group . . . In determining whether a law is motived by an improper animus or purpose, ”[d]iscriminations of an unusual character” especially require careful consideration . . . DOMA cannot survive under these principles.

Justice Kennedy, writing for the majority

The antipathy in question (and the appetite of malevolence that results from it) as far as it is not warranted by the essential mischieviousness of the offence is grounded only in prejudice . . . It may be asked indeed, if pleasure is not a good, what is life good for, and what is the purpose of preserving it? But the most obvious and immediate consequences of a proposition may become invisible when a screen has been set before by the prejudices of false philosophy or the terrors of a false religion.

Jeremy Bentham, Esq., writing for Justice Kennedy

The trail can be traced here: Offences against One’s Self

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