The recent Supreme Court decision in United States v. Windsor found that the Defense of Marriage Act (DOMA) deprives same-sex couples due process and equal protection under the law, thus violating the fifth amendment of the United States Constitution. Writing for the majority in the 5-4 opinion, Justice Anthony Kennedy declared that traditional marriage laws “disparage,” “injure,” “degrade,” and “demean” same-sex couples. Furthermore, Kennedy claimed that the intention of DOMA was to “impose inequality,” to “impose . . . a stigma,” and to deny homosexuals “equal dignity” under the law. Members of the LGBT community, of course, are celebrating this decision. Traditionalists, on the other hand, are worried about the eventual ramifications of this decision. Justice Antony Scalia, writing for the minority, explained why in a powerful rebuttal that is worth quoting at length:
I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” ”injure,” “degrade,” ”demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
Remember that when it comes to Constitutional law, precedent is everything. With this decision, the Supreme Court has effectively declared that there are no rational grounds for the traditional view of marriage, that the only basis for affirming the traditional view is, well, hate. So this decision not only overturns DOMA but also provides powerful momentum for state legislatures to fall in line. Some are predicting that in less than five years all fifty states will have legalized same-sex marriage. So, apparently, we are heading for a new national orthodoxy when it comes to marriage. And for those who don’t agree, it spells trouble. What will happen to pastors who affirm the traditional view in their sermons? That’s hate speech. Or wedding vendors (bakers, florists, banquet hall owners) who refuse to serve same-sex weddings? That’s illegal discrimination. In fact, such cases are already in the news. But when the new orthodoxy is in place, it will be ramped up considerably. This is a good example of what Alexis de Tocqueville called the “tyranny of the majority.”