In his analysis of the Supreme Court decision about marriage Hardley Arkes writes that it places "hate speech" as the engine that will sweep away all barriers to homosexual marriage in our country.
decisions, handed down by the Court today, affect to be limited in
their reach, but they are even worse than they appear, and they cannot
be cabined. They lay down the predicates for litigation that will
clearly unfold now, and with short steps sure to come, virtually all of
the barriers to same-sex marriage in this country can be swept away.
Even constitutional amendments, passed by so many of the states, can be
overridden now. The engine put in place to power this drive is supplied
by Justice Kennedy’s “hate speech,” offering itself as the opinion of
the Court in U.S. v. Windsor.
Kennedy wrote for the Court in striking down Section 3 of the Defense
of Marriage Act (DOMA), the part of the act that recognized as
“marriage,” in federal law, only the union of a man and woman. In
Kennedy’s translation, the Defense of Marriage Act showed its animus in
its very title: The defense of marriage was simply another way of
disparaging and “denigrating” gays and lesbians, and denying dignity to
their “relationships.” As Justice Scalia noted so tellingly in his
dissent, Kennedy could characterize then as bigots the 85 senators who
voted for the Act, along with the president (Clinton) who signed it.
Every plausible account of marriage as a relation of a man and woman can
then be swept away, as so much cover for malice and blind hatred.
Scalia suggested, that opinion can now become the predicate for
challenges to the laws on marriage in all of the States. A couple of the
same sex need merely go into a federal court and invoke Justice
Kennedy’s opinion in the DOMA case (U.S. v. Windsor): The
Supreme Court has declared now that a law that refuses to recognize
same-sex marriage is animated by a passion to demean and denigrate. Any
such law cannot find a rational ground of justification. As Kennedy had
famously said in Romer v. Evans, those kinds of laws can be explained only in terms of an irrational “animus.”