First, it’s the Fifth Amendment due-process right that compels the invalidation of DOMA. Then it’s the Equal Protection clause of the Fourteenth Amendment. Then it’s the deference owed to the states that traditionally (but not uniquely) have defined the parameters of marriage.
For example, as Scalia notes, the federal government in the past has exerted control over the states with respect to marriage, including forcing Utah to ban plural marriage before it allowed it to enter the union.
So, while it’s true that states are uniquely qualified and have usually been the arbiters of what constitutes a valid marriage, it’s not unheard of for the federal government to stick its nose into local business. Kennedy did here what he did in the abortion debate decades ago: try to find some legal support for that grand and glorious individual-liberty interest that he thinks every American should have (except perhaps the tiniest unborn ones).
While that’s great when it’s incorporated into fiction or soap operas or ballads, it doesn’t play well when it’s coming from one of the three branches of federal government. There are legitimate reasons why DOMA should not have been invalidated, including this: judicial override of a bill that was passed by an overwhelming majority in the Senate, simply because you think it’s mean-spirited and does severe damage to our political process.
This is especially so when the legal reasoning is so scattershot. But Anthony Kennedy wanted to send a broad rainbow-colored message that anyone who opposed same-sex marriage was evil. For that, he had a lot of support, and when you have that kind of popular support, people aren’t going to start looking too deeply at legal coherence.
That goes in the dustbin, too.
Christine M. Flowers is a lawyer and columnist for the Philadelphia Daily News. Readers may send her email at firstname.lastname@example.org.