In the Northwestern University Law Review Colloquy, Andrew Koppelman: Why Scalia Should Have Voted to Overturn DOMA.  From the introduction:

Justice Antonin Scalia claims that when the Supreme Court invalidated Section 3 of the Defense of Marriage Act (DOMA) in United States v. Windsor, it improperly impugned Congress’s motives. The Court held that the statute, which withheld federal recognition from same-sex marriages for all purposes throughout the U.S. Code, reflected a “bare congressional desire to harm a politically unpopular group.” Scalia is right that opposition to same-sex marriage is not the same as hatred of gays.

Yet Scalia’s own methods of statutory interpretation support what the Court did in Windsor. If one infers the statute’s purpose from its language and interaction with other statutes, with no attention to the legislative history or the subjective intentions of the law’s authors, the result the Court reached is inescapable. The statute may not precisely reflect a bare desire to harm, but it reflects an extreme indifference to the welfare of gay citizens that violates equal protection.

Part I of this Essay describes the debate among the Justices about the purpose of DOMA. Part II uses Scalia’s theory of statutory interpretation to discern DOMA’s purpose. Part III explains why DOMA, as understood through that theory, violates the Equal Protection Clause. The last Part concludes.

NOTE: This post was originally published at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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