The Defense of Marriage Act is history—a development that should have surprised no one. I’m tempted to say, “Good riddance to bad rubbish,” but the fact that passing DOMA in the first place was one of the most disastrously stupid moves the Republican Party has made over the past 20 years does not change the reality that the Supreme Court’s decision striking down the core of DOMA will only accelerate the pace of cultural decline. That, of course, is precisely why DOMA was wrongheaded from the start: You cannot grant the federal government the authority to define marriage without granting that same government the authority to redefine marriage. As I wrote at the time, if the federal government can define marriage as between one man and one woman, it can redefine marriage as between two men or two women, or one man and his monkey. The permutations, of course, are endless: Before the decision was handed down on June 26, some of the more honest homosexual activists had already made it clear that plural marriage was next on the agenda—and will anyone really be surprised when “pro-family” Muslims, a significant number of whom are already engaged in extralegal polygamy here in the United States, are only too happy to join in that crusade?
Indeed, the Mormon Church, which had pumped millions of dollars into California’s Proposition 8 only five years ago, had already kissed and made up with homosexual activists in the months before the Supreme Court’s decision. Perhaps the LDS “apostles” simply saw the writing on the wall: On the same day that five Supreme Court justices struck down the core of DOMA, a different group of five let stand a California trial court’s decision striking down Proposition 8. Or perhaps the Mormons were looking ahead to a coming political realignment, in which homosexual activists would help reassert the teaching of Joseph Smith and Brigham Young, in exchange for new temple ceremonies binding homosexuals to one another not simply “till death do us part” but for eternity.
It came as no surprise, of course, that Justice Anthony Kennedy, the author of the famous “mystery passage” (“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life”), delivered the opinion of the Court in the DOMA case. His logic hasn’t changed in the 21 years since Planned Parenthood v. Casey: “The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment.” In a better time, textbooks would cite this passage as the example par excellence of “begging the question,” since it simply assumes that the definition of marriage includes two men or two women engaged in a sodomitic relationship. Alas, it will be many years before such a better time comes again.
Commentators will be scratching their heads for months trying to figure out what tied together the majority in the Proposition 8 case, which comprised such seemingly disparate justices as Roberts, Scalia, Ginsburg, Breyer, and Kagan. Scalia and Ginsburg, however, are closer than one might think, even if they were at odds on the DOMA case. In early May, Ginsburg had shocked supporters of abortion by declaring that she thought that Roe v. Wade was wrongly decided. She had not, of course, switched sides on abortion; rather, she made a compelling argument that a narrower decision, overturning the Texas law in question but leaving the laws of other states standing, would have advanced the cause of “abortion rights” more quickly: “The court can put its stamp of approval on the side of change and let that change develop in the political process” in other states that restricted abortion.
Ginsburg’s faith in the political process was echoed by Justice Scalia in his dissent in the DOMA case: “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.”
Asserting that “the People” can decide to redefine marriage, so long as they do so at the state rather than the federal level, is another textbook example of begging the question. The war on marriage will never be won until defenders of marriage—not “traditional marriage,” but marriage, full stop—come to understand that there are no political solutions to cultural problems.