The Right Opinion

A Roe by Any Other Name

By Mona Charen · Jun. 28, 2013

Many commentators on United States v. Windsor have offered the view that the decision was not far-reaching, that it didn't enshrine same-sex marriage as a constitutional right and that therefore the struggle continues.

Don't believe it for a minute. The contest is over. Windsor is a stealth Roe. It showed that five justices regard the arguments in behalf of traditional marriage to be nothing more than bigotry. It also revealed that those five will not be constrained by law or tradition from imposing their views on the nation at the next opportunity.

Chief Justice Roberts attempted to limit the damage, observing in dissent that 1) he believed that the court lacked jurisdiction, and 2) that the majority's rationale, based (loosely) as it was on federalism principles would cut the other way when state laws upholding traditional marriage are challenged. Roberts admonished that the court's majority opinion did not resolve the question of state definitions of marriage and should not be interpreted as such.

Nice try.

Scalia went after the jurisdictional question with his customary laser. So “hungry” were the five members of the majority to pontificate about the merits of same-sex marriage, he wrote, that they skipped blithely over “a technicality of little interest to anyone except the people of We the People” – namely that there was no case or controversy for the high court to resolve in Windsor. The “United States” of the case's title agreed with the result at the appeals court and district court levels, which were both in Windsor's favor. The plaintiff had long since been made whole. So what, Scalia asked, “are we doing here?”

The majority was showboating its enlightenment, that's what. As Justice Alito observed, there is no constitutional resolution to the same-sex marriage debate. Unlike other liberties found by the Court to inhere in the Due Process clause, it cannot conceivably be described as a “fundamental right deeply rooted in this nation's history and tradition.” It belongs, accordingly, with the people and their elected representatives. But the majority will have none of that.

Gone is the usual deference that the court offers to the other branches of government. Rather than evaluating whether there was a “rational basis” for the law – a traditional test in cases involving the Due Process and Equal Protection clauses of the Constitution – Justice Kennedy's majority opinion completely ignored the many valid reasons Congress might have had for enacting the law. Instead, Kennedy threw insults at the 342 members of Congress, 85 senators, and the president who enacted the law. Their motive, he wrote was a “bare … desire to harm a politically unpopular group.” The law inflicted “injury and indignity.” It was intended to “injure the same class the State seeks to protect.” The “principal purpose and the necessary effect of this law are to demean.” “The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

The implications of this judicial bullying and name-calling are only too obvious. The five members of the majority wish to associate themselves with fashionable opinion and will no doubt be guided by that vanity (rather than by law) when the next opportunity arises to reverse democratically enacted policies they dislike. Sheepishness about contradicting their federalism argument is unlikely to constrain the next “correct” judgment.

The inflammatory language of this opinion will also echo through the coming debates about charitable status, government contracts, licenses and accreditation. The Supreme Court has decreed that there is no possible rationale beyond hatefulness to oppose changing the ancient institution of marriage. This sets the stage for nearly all religious institutions to be considered agents of bigotry.

As many in the pro-marriage coalition have been arguing for two decades, the case for traditional marriage is not about hostility to homosexuality. It's about staunching the decay of the institution that undergirds everything else in our society. To enshrine same sex marriage is to endorse the idea of marriage as adult fulfillment.

Marriage is much more than that. But the argument will have to continue outside the legislatures and the courts – because five members of the Supreme Court have taken our power, our franchise and our sovereignty from us.



TOD-the tool guy in Brooklyn N.Y. said:

Christ is the cornerstone. When the master spoke to the stone masons at Ephesus, He said, "the stone that the builders rejected has become the chief cornerstone." This ties in with the alpha-the first stone laid for a foundation.Alpha and Omega [the first and the last] See St. John's Gospel chapter one---In the beginning. Ok, my point about marriage is this; today's pagans reject traditional marriage, which makes the sacrament even stronger, like Christ!

Friday, June 28, 2013 at 6:34 AM

Ted R. Weiland in Nebraska said:

Disconcerting as many Americans find yesterday's decision, what is even more disturbing is that five people have the power to decide what's morally correct for the rest of America:

"...The power of the people of the United States of America and their representatives is subject to the Judicial Branch, and ultimately the Supreme Court, which is essentially immune from any kind of censure. The real power or sovereignty of the United States Constitutional Republic resides in a Biblically unqualified and nearly always Biblically adverse five to four majority. The United States government is ultimately under the control and direction of five lawyers. And why not? In 1787, it was predominately lawyers (thirty-four of the fifty-five delegates were lawyers) who framed the Constitution and gave ultimate power into the hands of their own trade....

"[Gary] North observes that 'political conservatives cry out against the concentration of power in the hands of the Supreme Court.' (Gary North, Conspiracy in Philadelphia: The Broken Covenant of the U.S. Constitution (Draper, VA: Nicene Council,2004) p. 274.) But this is only because the Supreme Court’s rulings are predisposed toward liberals. If it were otherwise, political conservatives would have no objections against this concentration of power...."

For more, see online Chapter 6 "Article 3: Judicial Usurpation" of "Bible Law vs. the United States Constitution: The Christian Perspective" at

Saturday, June 29, 2013 at 9:19 AM

Abu Nudnik in Toronto said:

Kennedy crossed a line that must not be crossed. By attributing a motive to the minds of those who voted DOMA into law (and signed it), he was doing what no court will allow as *evidence*. How much less can the presumption of the contents of another person's mind be used in a *decision* if it isn't even allowed as evidence? No one has yet commented on this basic error so I thought it was noteworthy.

Monday, July 1, 2013 at 2:23 PM

Thomas Michael in Lansing Michigan said:

Mona Charen's assessment is accurate. The case's legal rationale is weak, ambiguous, window-dressing. The shocking thing is that the court took it as self evident that anyone who defends the natural meaning of marriage is a bigot, out to harm homosexuals. The court found there was no rational basis for the federal government to limit federal marriage laws to authentic marriage. The rational basis test is the lowest possible hurdle to uphold a law's legitimacy. Almost any law can be found to have a rational basis. But a law based on the self evident facts of human nature, on the observation that human beings come in 2 complementary genders, and that considers garriage is a radical redefinition of the most fundamental of human relations upon which the family, the building block of society depends -- such a law has NO rational basis? Jaw dropping and a harbinger of coming oppression.

Monday, July 1, 2013 at 10:53 PM

Kirby in Vancouver, WA said:

Parts of DOMA should have been declared unconstitutional in that the Constitution reserves that power to the States and the people. The majority opinion, however, was the most discussing thing I have ever read. Calling me names and casting dispersion on my character just because I believe God when he said “a man and a woman…” is completely outside any modicum of decency for any judge, much less a Supreme.

Sunday, July 7, 2013 at 1:06 AM