Apparently, in the case of making DOMA unconstitutional, the following argument was made:
DOMA is unconstitutional as a deprivation of the equal liberty of
persons that is protected by the Fifth Amendment. Pp. 13–26.
(a) By history and tradition the definition and regulation of marriage
has been treated as being within the authority and realm of the
separate States. Congress has enacted discrete statutes to regulate
the meaning of marriage in order to further federal policy, but
DOMA, with a directive applicable to over 1,000 federal statutes and
the whole realm of federal regulations, has a far greater reach. Its
operation is also directed to a class of persons that the laws of New
York, and of 11 other States, have sought to protect. Assessing the
validity of that intervention requires discussing the historical and
traditional extent of state power and authority over marriage.
Subject to certain constitutional guarantees, see, e.g., Loving v.
Virginia, 388 U. S. 1, “regulation of domestic relations” is “an area
that has long been regarded as a virtually exclusive province of the
States,” Sosna v. Iowa, 419 U. S. 393, 404. The significance of state
responsibilities for the definition and regulation of marriage dates to
the Nation’s beginning; for “when the Constitution was adopted the
common understanding was that the domestic relations of husband
and wife and parent and child were matters reserved to the States,”
Ohio ex rel. Popovici v. Agler, 280 U. S. 379, 383–384. Marriage laws
may vary from State to State, but they are consistent within each
State.
DOMA rejects this long-established precept. The State’s decision
to give this class of persons the right to marry conferred upon them a
dignity and status of immense import. But the Federal Government
uses the state-defined class for the opposite purpose—to impose restrictions
and disabilities. The question is whether the resulting injury
and indignity is a deprivation of an essential part of the liberty
protected by the Fifth Amendment, since what New York treats as
alike the federal law deems unlike by a law designed to injure the
same class the State seeks to protect. New York’s actions were a
proper exercise of its sovereign authority. They reflect both the
community’s considered perspective on the historical roots of the institution
of marriage and its evolving understanding of the meaning
of equality.
The same 5 justices who signed their name to that opinion now somehow believe the federal government has the power to define marriage for all 50 states. It seems to me that the court is more interested in politics than interpreting the Constitution, if they can make contradictory rulings like this two years apart. That's my concern, and the concern of Justices Scalia, Thomas and Alito, as well as millions of other people. It is frightening that we are not ruled by the law, but by the political winds of the day and the personal opinions of 5 old unelected lawyers appointed for life. You and I may agree that the result is beneficial, but what happens when the political winds shift and the old lawyers are of a different opinion?
(And for SSS, yes I heard this from Rush while I was in my car. I guess it is an invalid point because he made it.)
