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"FORTUNE &amp;#8212; History will say that the federal Defense of Marriage Act was struck down by a 5-4 vote of the U.S. Supreme Court. But those who read the landmark, gay-rights ruling might see it as more of a 5-3-1 vote.\nFive justices joined the majority, three justices dissented, and one justice came unhinged.\nThe latter, Justice Antonin Scalia, accused the majority of resorting to \u201Clegalistic argle-bargle\u201D in its \u201Chigh-handed invalidation of a presumptively valid statute;&amp;#8221; of envisioning itself as \u201Cstanding (or rather enthroned) at the apex of government\u201D where it aspired to \u201Cblack-robed supremacy;\u201D of \u201Cpawning\u201D the Court\u2019s constitutional legitimacy \u201Cto buy its stolen moment in the spotlight;\u201D and of trying to intimidate dissenters by presenting them with a \u201CHate your neighbor or come along with us\u201D ultimatum. He concludes, with no apparent self-awareness, \u201CIt is hard to admit that one\u2019s political opponents are not monsters.\u201D\nIndeed.\nScalia\u2019s self-investiture in the bromides of judicial restraint, portraying himself as the humble servant of the democratically elected branches of government, fell particularly flat this time around, coming as they did just one day after he joined the majority that struck down, by another 5-4 vote, the linchpin provision of the Voting Rights Act of 1965, legislation repassed just seven years ago by a nearly unanimous Congress. In that instance, Shelby County v. Holder, Justice Scalia had actually suggested at oral argument last November that the more lopsided the margin by which an Act of Congress passes, the more suspect it becomes.\nMORE:\u00A0Senators to corporate interests: Want to keep that tax break? Convince us.\n\u201CNot a single vote in the Senate against it,\u201D Justice remarked then about the Voting Rights Act, articulating one of the reasons he saw a need to kill it. \u201CAnd the House pretty much the same. I think it is \u2026 very likely attributable to a phenomenon that is called perpetuation of racial entitlement. It&amp;#8217;s been written about &amp;#8230; I don&amp;#8217;t think there is anything to be gained by any senator to vote against continuation of this act \u2026 They are going to lose votes if they do.\u201D\nScalia\u2019s dissent yesterday was one of his \u201Cbomb-throwing\u201D opinions, as they are now known in legal academia, for they are a recognized genre. See, for instance, New York Times op-ed columnist and Yale Law School instructor Linda Greenhouse\u2019s discussion of them here.\nScalia\u2019s judicial tantrums are not triggered by mere disappointment with a result. (But see Andy Borowitz.) They reflect something deeper. They reflect frustration with cases that confront Scalia with the fundamental unworkability of his judicial philosophy.\nScalia says he believes that the words of the Constitution must be interpreted in accordance with their \u201Coriginal meaning\u201D &amp;#8212; that is, the objective meaning that they would have had to a reasonably well-informed member of the public at the time of its enactment. He rejects alternative theories of constitutional construction, known as \u201Cliving constitutionalism,\u201D which allow justices to interpret the broadly worded constitutional principles &amp;#8212; like \u201Cequal protection,\u201D \u201Ddue process,\u201D or \u201Ccruel and unusual punishment\u201D &amp;#8212; in light of contemporary circumstances, mores and values. He views the latter approaches as too loosey-goosey, allowing unelected justices to impose their subjective and elitist policy preferences on the unwashed masses.\nThe key problem with his jurisprudence is that it cannot account for the most important constitutional rulings of our age, and the ones of which Americans are most proud.\nLike Brown v. Board of Education, for instance. There, in 1954, the Court unanimously struck down, under the equal protection clause of the Fourteenth Amendment, de jure segregation in public schools. Yet it is highly unlikely that either the Congress that drafted the Fourteenth Amendment in 1866 or the electorate would have understood the equal protection clause to require such a result, since that same Congress made no attempt to dismantle the segregated school system that it had set up in the District of Columbia just four years earlier. On the contrary, Congress kept appropriating money to that segregated system until 1954. (I have discussed this challenge to Scalia\u2019s theory, as well as one originalist professor\u2019s attempt to find a retroactive workaround, here.)\nSimilarly, it\u2019s very hard, using Scalia\u2019s \u201Coriginal meaning jurisprudence,\u201D to account for why the equal protection clause should confer any protection upon women &amp;#8212; though Scalia accepts that it does &amp;#8212; who in 1868, couldn&amp;#8217;t vote or serve on juries, and whose property automatically became their husbands&amp;#8217; upon marriage.\nMORE:\u00A0Media is ruining the NSA debate\nThe recent, breathtakingly rapid changes in American attitudes toward gay rights likewise challenge Scalia\u2019s jurisprudence to its core. When the \u201Cequal protection clause\u201D was enacted, of course, at least 32 of 37 states considered consensual homosexual acts to be felonies; it\u2019s therefore very doubtful that the average American at that time thought the clause protected homosexuals.\nIn fact, as recently as 1986, Justice Byron White could and did famously write for a majority of the Court that the notion that the equal protection clause might extend protection to those who engage in homosexual acts was \u201Cat best facetious.\u201D\nBut our society changes with startling speed. Scalia himself has doubtless changed. Now that homosexuals are out in the open &amp;#8212; which was not the case in Justice White&amp;#8217;s time and milieu &amp;#8212; Scalia realizes all too well that he works with homosexuals, is related to some, and treasures his friendships with not a few. He does not relish having to cast himself &amp;#8212; as his jurisprudence requires &amp;#8212; as a defender of laws that, when all is said and done, were enacted to persecute these fellow citizens.\nBut this is what happens when a society\u2019s worldview spins on a dime, as ours has. Those who try to defend laws that once seemed so second-nature as to require no justification, suddenly find themselves tongue-tied when it comes to articulating any basis for them.\nOther than, of course, bare animus &amp;#8212; i.e., ill-will toward those who are disadvantaged by the law. But constitutionally speaking, bare animus doesn\u2019t count as a \u201Crational basis\u201D for a law. More important, no one today &amp;#8212; not even those still defending the laws in question &amp;#8212; wants to admit feeling such animus anymore, and most of them truly don\u2019t feel any anymore. So they get offended when someone seems to tar them with that brush, which is what Scalia saw Justice Anthony Kennedy, writing for yesterday\u2019s majority, as doing.\nAnd, yes, Kennedy did, in the end conclude, that DOMA \u201Cwrites inequality into the entire United States Code,\u201D and that \u201Cits avowed purpose and practical effect &amp;#8230; are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages.\u201D\nNevertheless, in earlier passages of his opinion, Justice Kennedy also did the best job I have seen of trying to write a nonjudgmental explanation of how both the DOMA Act, and the state laws it tried to preempt, came into existence:\nIt seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.\nKennedy was vilifying no one. The problem was that, when push came to shove, no one could come up with a plausible explanation for the existence of DOMA other than animus toward same-sex couples.\nJustice Scalia protested that there were \u201Cmany perfectly valid &amp;#8212; indeed downright boring &amp;#8212; justifying rationales for such legislation.\u201D But he struggled to name just two, and each was pathetically feeble. The first was the claim that the law would head off the need to confront certain thorny \u201Cchoice of law\u201D issues that could arise when gay couples were married in one state, which recognized same-sex marriage, but lived in another, which didn\u2019t.\nGive us a break. It\u2019s not called The Avoidance of Thorny Choice-of-law Issues Act. It\u2019s the Defense of Marriage Act. In any case, the corporations that were actually saddled with enforcing DOMA &amp;#8212; more than 200 of which filed an amicus brief opposing the law &amp;#8212; apparently saw few administrative advantages to it. In forcing their human resources departments to draw distinctions between identically situated married employees it was both a betrayal of their nondiscrimination policies and a bookkeeping nightmare, they argued.\nThe other reason Scalia offered was something he called \u201Cstabilizing prudence\u201D &amp;#8212; a desire to prevent hundreds of federal statutes on the books, which had alluded in passing to \u201Cmarriage\u201D or \u201Cmarried couples\u201D from now being applied in unforeseen circumstances. Again, are you kidding? You think that\u2019s what was drove enactment of this law? And isn\u2019t the argument circular anyway? If earlier Congresses were content to let states define \u201Cmarriage\u201D for the purposes of all these laws, what suddenly motivated the DOMA Congress to do a 180?\n\u201CThe fact that Justice Scalia chose these two unconvincing rationales is reflective of the absence of a better one,\u201D Jenner &amp;amp; Block partner Paul Smith wrote yesterday in a Scotusblog.com commentary.\nIt\u2019s reflective of more than that, in fact. DOMA defenders\u2019 collective flight from even admitting what it was originally about shows how quickly and dramatically worldviews can change. When we can no longer say out loud what it was that motivated the law, maybe it\u2019s time to let it fall. And when we can no longer remember why we used to deny homosexuals equal protection, maybe it\u2019s time to include them.\nThough some call it the living Constitution, it\u2019s not really the Constitution that\u2019s changing. It\u2019s just us. But Scalia\u2019s jurisprudence won\u2019t let him acknowledge the change. And it drives him nuts."^^<http://www.w3.org/2001/XMLSchema#string>
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