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The Supreme Court’s Embrace of Unreality

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Robert R. Reilly - published on 07/01/13 - updated on 06/08/17

Justice Kennedy has been moving in this direction in previous rulings, and he's clearly not done yet

In the just-decided United States v. Windsor case, Justice Anthony Kennedy delivered the opinion of the court that the Federal Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.

Within hours, the decision began rippling through the Federal government, as it affects more than 1,000 Federal statutes and the whole realm of Federal regulations. "The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act," said an eager Secretary of Defense Chuck Hagel. "The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses – regardless of sexual orientation – as soon as possible. That is now the law and it is the right thing to do".

Right, as in the “moral” thing to do? Let us consider.

In the history of the United States, only heterosexual married couples have ever received Federal marriage benefits. In 1996, confirming what had always been the practice, Congress passed DOMA to provide a formal definition of “marriage” and “spouse” for the purposes of all acts of Congress and any Federal regulations.

How did this become a problem?

In 2009, Edith Windsor, who had “married” her lesbian partner in Ontario, Canada, in 2007, sought to claim the Federal estate tax exemption for surviving spouses when her partner died. In compliance with DOMA, the Internal Revenue Service denied the exemption for the US$363,053 that she was required to pay. Windsor, a New York resident, sued, contending that the principles of equal protection incorporated in the Fifth Amendment were violated since her marriage had been recognized by the state of New York.

The Federal District Court found in her favor, as did the Second Circuit Court. The House of Representatives was allowed to intervene in the case to defend the constitutionality of DOMA when the Obama administration withdrew its defense of the law. Thus, the case arrived at the Supreme Court in the spring of 2013.

The Windsor decision, delivered on June 26, 2013, the 10th anniversary of the Lawrence v. Texas decision, was every bit as bad as one would expect from its predecessors. It simply followed their logic. In fact, it was so predictable as to make specious Justice Kennedy’s preceding claim in Lawrence that that decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”.

Of course it did.

In retrospect, his remark sounds almost hilariously naïve or disingenuous. In fact, in certain aspects, the Windsor case reads as if Justice Kennedy is having a conversation with himself over the span of a decade. Finally, 10 years after Lawrence, he closes the loop. He even quotes himself. “Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State,” he said, “and it can form ‘but one element in a personal bond that is more enduring’".(Lawrence v. Texas, 539 U. S. 558, 567 (2003)). That’s the setup. Then Justice Kennedy closes the loop:

“By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages”.

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