Hadley Arkes on the History of DOMA and Our Future without It

Yes, the Supreme Court struck down DOMA today, in U.S. v. Windsor .  Kennedy was consistent.  5-4, what else.

Hadley Arkes, in a piece from a few months ago , reminds us why the act was passed (85 to 14 in the Senate and 342 to 67 in the House) back in the hoary days of 1996. You know, back when people of both parties, I suppose many of whom thought they were thinking rationally , thought it was needed legislation, in response to Hawaii’s pending civil union court decision and the unclear status of such unions in federal law generally.

Arkes’s history lesson just might cause one to doubt what today’s majority opinion says (as Scalia notes in his dissent), that the supporters of the act, including those 427 members of Congress and President Clinton in 1996, did so with the purpose “to disparage and injure,” to “demean,” to “impose . . . a stigma,” to deny people “equal dignity,” to brand gay people as “unworthy,” and to “humiliate their children.”

P.S. U.S. v. Windsor is the decision to focus on.  The Prop 8 case, Hollingsworth v. Perry , gets you into major weeds quick, even if you understand (unlike most Americans) the concept of standing.  The weeds go way beyond SC debates about standing, however—at this hour most commentators are even uncertain what the decision will do to the relevant district court ruling against Prop 8.

P.P.S.  As I read the decision and more commentary on it, it seems the more accurate lead is “The Supreme Court struck down Section 3 of DOMA.”  But I’m not the only one who’s made that error of insufficient distinction—see NRO main page among others.  Here’s the relevant text from the majority opinion:  “Section 2, which has not been challenged here, allows States to refuse to recognize same-sex marriages performed under the laws of other States.”  Section 3, which the decision does overturn, concerns the defintion of marriage under federal law.  Yes, since section 2 is arguably unnecessary given the traditional understanding of state authority over marriage, section 3 really is the heart of DOMA, but still.  Gotta dot those i’s and cross them t’s.