The door is now open for polygamy.
From Albert Moehler’s (president of The Southern Baptist Theological Seminary) blog
Back in 2003, when the Supreme Court struck down all state laws against homosexuality, Justice Kennedy also wrote the majority opinion. That opinion, in the case Lawrence v. Texas, set the stage for today’s majority opinion authored by the same justice. In 2003, Justice Kennedy argued that laws restricting homosexual acts and relationships were driven by moral animus against homosexuals and homosexuality. He acknowledged that this moral judgment is both venerable and deeply rooted in the moral traditions of Western civilization, but he condemned such laws and, writing for the majority, struck them down. He employed the very same logic today in striking down DOMA.
Back in 2003, Justice Antonin Scalia issued a scathing dissent to Justice Kennedy’s majority opinion: “Today’s opinion dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as a formal recognition in marriage is concerned. If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct … what justification could there possibly be for denying the benefits of marriage to homosexual couples?”
Justice Kennedy insisted in 2003 that the Lawrence decision did not involve homosexual marriage and did not imply any necessary recognition of same-sex unions. In response, Scalia retorted: “This case ‘does not involve’ the issue of same-sex marriage only if one entertains the belief that principle and logic have nothing to do with the decisions of this Court.” He concluded: “Many will hope that, as this Court comfortingly assures us, this is so.”
As Justice Kennedy himself made abundantly clear today, Justice Scalia was right ten years ago. Justice Kennedy’s protestations that the Lawrence decision did not involve same-sex marriage were wrong. It is hard to avoid the moral conclusion that he was then both intellectually dishonest and disingenuous. The decision handed down today proves Justice Scalia to have been a prophet. He told the truth, and Justice Kennedy, in his own words, has proved Scalia to have been right.
In an equally scathing dissent handed down in the DOMA case today, Scalia called the decision “jaw-dropping.” He castigated the Court’s majority for usurping the democratic process and for condemning all opposition to same-sex unions as “irrational and hateful.”
Even though the Court did not rule today that all states must legally recognize and allow for same-sex marriages, the handwriting is on the wall. Justice Kennedy’s majority opinion implicitly invites any citizen who resides in a state that does not allow for same-sex marriage to claim that his or her constitutional rights are violated on the basis of the Court’s opinion handed down today. You can count on a challenge of this form arising in short order.
As Justice Scalia noted in his dissent today, “As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.”
The Court’s majority did not want to pay the political price that a decision as immediately sweeping as Roe v. Wade would have cost. Instead, the majority decided to send a clear signal that such a case will now be well received. It struck down DOMA by employing a logic that, as Scalia noted, cannot stop with the striking down of DOMA. It can only stop with the full legalization of same-sex marriage in all fifty states by judicial fiat.
But wait, for there are more shoes to drop. In his opinion today, remember that Justice Kennedy wrote these crucial words: ”The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence.”
What about laws against polygamy? Was Justice Kennedy even aware of just how sweeping this statement would be? Laws against polygamy were explicitly passed in order to “interfere” with the “equal dignity” of multiple-spousal marriages. Justice Kennedy’s opinion, now the Court’s decision, destroys any legal argument against polygamy.
