June 27 2013
Justice Kennedy: Bringing the Hater Smear to Hallowed Halls
The Left—and, yes, it is mostly the Left—has established a new rubric in politics: if you disagree with me, you are a hater. This notion that political adversaries are filled with hatred pervades American culture and politics, and in the long run it’s not doing anybody any good.
The apparently all too willing targeting of tea party groups by the IRS can’t be divorced from the president’s nasty remarks about the tea party. Some of the more naïve IRS agents may actually have thought they were protecting the country from haters.
This smear tactic took a giant step forward yesterday, and in the hallowed precincts if the Supreme Court. Justice Anthony Kennedy’s majority opinion in favor of finding the Defense of Marriage Act unconstitutional found "improper animus" in the Congress that passed DOMA in 1996.
Think about that accusation: Congress wasn’t out to uphold a value then shared by the majority of Americans but to be mean to gays. Animus is a strong term. In short, Kennedy says that the United States Congress of 1996 was composed of bigots. Were all these people filled with hate 20 years ago?
In a Corner piece headlined “Tarring ‘the Political Branches with Bigotry,’” former George W. Bush legal adviser John Yoo writes:
The Court cannot quite hold that Congress is not allowed to adopt definitions of words like “marriage” for federal-law purposes, so it instead says that the federal definition shows an intent by Congress to harm gays. The conclusion assumes, without explicitly saying so, that 342 Members of the House, 85 Senators, and President Bill Clinton were all guilty of antigay bias in 1996, when DOMA was enacted. As Chief Justice Roberts says, “I would not tar the political branches with bigotry.”
In a dissent, Justice Scalia wrote:
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.
The president said yesterday in a statement that this ruling won’t force religious bodies that oppose same-sex marriage will not be forced to violate their consciences. We’ll see.
Rich Lowry also writes about the contemptuous Justice Kennedy.