The Commercial Appeal

Windsor serves no real purpose

- MONA CHAREN COLUMNIST Mona Charen is a columnist for Creators Syndicate.

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 John 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. Justice Antonin 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 Samuel Alito observed, there is no constituti­onal resolution to the samesex 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 Defense of Marriage Act — a traditiona­l test in cases involving the due process and equal protection clauses of the Constituti­on — Justice Anthony 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.

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.

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