However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly validindeed, downright boringjustifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Courts conclusion that only those with hateful hearts could have voted aye on this Act. And more importantly, they serve to make the contents of the legislators hearts quite irrelevant: It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. United States v. OBrien , 391 U. S. 367, 383 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the laws opponents and any panel of like-minded federal judges) can be characterized as mean-spirited.
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The penultimate sentence of the majoritys opinion is a naked declaration that [t]his opinion and its holding are confined to those couples joined in same-sex marriages made lawful by the State. Ante, at 26, 25. I have heard such bald, unreasoned disclaimer[s] before. Lawrence , 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with whether the government must give formal recognition to any relationship that homosexual persons seek to enter. Id., at 578. Now we are told that DOMA is invalid because it demeans the couple, whose moral and sexual choices the Constitution protects, ante, at 23with an accompanying citation of Lawrence. It takes real cheek for todays majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue herewhen what has preceded that assurance is a lecture on how superior the majoritys moral judgment in favor of same-sex marriage is to the Congresss hateful moral judgment against it. I promise you this: The only thing that will confine the Courts holding is its sense of what it can get away with.
Frankly, I don't think Obama will need to do a blasted thing...other than to file a ton of amicus briefs. The courts will do his dirty work for him.
First time I have seen the Scalia dissent.
The only relief we might be able to take is that this was a 5-4 decision...IF we can replace one of the liberals.....
Sadly, I’m afraid you’re right Mark.