Wednesday, June 26, 2013


In his dissent in the DOMA case, Scalia wrote:
However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation.

The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification. It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them.
Scalia then goes on to describe the hypothetical tax problem of a gay couple that moves to a state that does not recognize gay marriage: can they file as a married couple in spite of the state's non-recognition of their marriage? This strikes me as a trivial issue compared to conzsiderations based on "equality under the law."

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