Scalia: ‘High-Handed’ Kennedy Has Declared Us ‘Enemies of the Human Race’


scaliaDissenting from yesterday morning’s opinion on the Defense of Marriage Act, Justice Antonin Scalia – as expected – holds nothing back.

In a ripping dissent, Scalia says that Justice Anthony Kennedy and his colleagues in the majority have resorted to calling opponents of same gender marriage “enemies of the human race.”

But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con- demn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “dis- parage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who [follow the same gender lifestyle]¬†. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence- indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Scalia says that the court’s holding – while limited to the Defense of Marriage Act – is a sure sign that the majority is willing to declare gay marriage a constitutional right.

It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-[gender] marriage is not at issue here-when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-[gender] marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.

And, he says, the holding will short circuit the debate over gay marriage that should have been carried out in the states.

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better. I dissent.


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  1. take a look at today’s picture on the Metro newspaper. Who is jumping for joy;none other then Christine quinn-candidate for Mayor of New York City. Which jewish leader would want to be associated with such a person/ A chilul hashem for any Jewish leader who associates with such a person

  2. It is certainly noteworthy that this terrible Churban Рthis terrible calamity was publicized the day after Shiva Asar B’Tammuz, which is right at the beginning of the three week period of Aveilus Рof mourning for the Churban Beis HaMikdash Рthe Destruction of the (world central) Temple, which really includes the mourning for all Churbanos.

  3. There are two organizations that I know about that look like very fine establishments that are specifically fighting mainly against the wicked Toeiva thingy. They are:

    1.) Public Advocate of the United States,
    web site: and

    2.) Campaign for Children and Families,
    web site:

    Their web sites have large amounts of great source materials and detailed news updates on the issues; I would think that it is a big Mitzva to support them.