Ruth Ann Dailey On DOMA

Ruth Ann Dailey's wrote her own dissent of US v Windsor a few days ago in the Post-Gazette.

I gotta say that I've met Ruth Ann a few times (we shared the table on "Night Talk: Get To The Point" a few months ago) and she's a very nice person.  She's not stupid or hateful at all - and as a person I'd like to say that I like her very much.

But she's completely wrong about her dissent in the P-G where she seems to be saying that it's just so darned unfair to "religious traditionalists" for the big bad guv'ment to treat everyone fairly.  But don't take my word on it.  Here's what she says:

The only matter settled by the U.S. Supreme Court's decisions on gay marriage last week is that our nation faces many more years of litigation and legislation. And that was already a certainty before the decision was handed down.

Had the court established a sweeping constitutional right to same-sex marriage -- a decree that, like Roe v. Wade, would have overturned the varying laws of many states -- the political climate ahead would be far more bitter and divided.

For those of us still hoping for a win-win, this bit of judicial restraint constitutes some good news.

The bad news is that while the majority decisions were restrained, their rhetoric was not. The prevailing justices' lack of historical knowledge and philosophical depth underscores the significant drawback to our society's health in appointing to the bench mere specialists in the law. These are very smart people with alarmingly narrow vision.

And in their narrow vision, they have set the stage for a new persecuted minority: religious traditionalists.

See?  By making things more fair, The Supremes are persecuting the faithful - well some faithful, as Dailey dutifully points out that:

...several Christian denominations recognize same-sex relationships and ordain openly gay clergy.

But let's get back to her rhetorical rumba.  A line or two after the intro above, she gets a simple fact embarrassingly wrong.  Here's what she wrote:

Justice Anthony Kennedy's language in the decision overturning part of the Defense of Marriage Act is, as others have already pointed out, contemptuous of tradition and those who value it. Being able to see into other people's hearts and minds, he asserts that DOMA was motivated by a "bare congressional desire to harm a politically unpopular group."

Note that the paragraph is about Justice Kennedy's language in which he asserts something about the motivations (the "bare...desire to harm") of Congress - something she's sarcastically implying he has no reason or evidence to hold true.  It's almost as if she can see into Justice Kennedy's heart and mind and that she can simply "know" that he's making it up.

Too bad the facts get in the way of that.

Let's go and see how Justice Kennedy actually used that phrase.  He uses it twice in the Windsor decision and each time (though one summarizes the other) he's quoting a previous Supreme Court decision from 1973.  His first usage:

By seeking to injure the very class New York seeks to protect, DOMA violates basic due process and equal protection principles applicable to the Federal Government. The Constitution's guarantee of equality "must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot" justify disparate treatment of that group. Department of Agriculture v. Moreno...[Italics in Original]

The fact that he was quoting from a 4 decade old decision is lost on her - what she's quoting from Kennedy was not actually his language, his assertion, is it?  He was using it to make a larger point.  A writer usually as careful as Ruth Ann Dailey should not be making such a simple mistake.  But lets get back to the larger point Kennedy was making.  Here's the passage he quotes from in the Moreno decision:

For if the constitutional conception of "equal protection of the laws" means anything, it must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest.

But of course, the question remains, does DOMA reach that standard?  Dailey's asserting that Kennedy just made it up by imposing some sort of vague imagery into the hearts and minds of Congress.  However when you look at what he actually wrote, you can see that Kennedy actually does make the case (something else lost on Dailey):

In determining whether a law is motived by an improper animus or purpose, "[d]iscriminations of an unusual character'" especially require careful consideration. DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State's classifications have in the daily lives and customs of its people. DOMA's unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.

It's all there, Ruth Ann.  Your sarcasm is misplaced.  You either knew it was there or you didn't.  If you knew, then you were omitting it from your column dishonestly OR if you didn't then you didn't do your homework well enough.

Which one is it?

In effect, Kennedy's saying that some states recognized that same-sex couples had the same rights as heterosexual couples but that under DOMA, the former were denied Federal rights because of who they were - if equal protection under the laws means anything it means that no law so singling out a group or class of people for harm can survive constitutional scrutiny.

But to Ruth Ann Dailey, the religious traditionalists should be free to be unfair, to treat some of their fellow citizens unequally, as second class citizens.  But then she writes this:

Quite a few of us who identify as heterosexual, Evangelical and traditionalist nonetheless wish to extend to our fellow citizens all the relationship rights we enjoy in our straight marriages. We simply wish to do so in a way that preserves our constitutional right to disagree about the theology of marriage without being persecuted by the state.

Huh?  But if same sex couples were extended all the same rights then there would not be a need for any of this would there?  And doesn't the First Amendment already protect the constitutional right to disagree on theology?  What's not protected is acting on such a disagreement so as to deny another citizen his or her basic constitutional rights.

Equal protection under the law - it's only fair.  If religion gets in the way it's the religion that's wrong not the law.