Over the past week, Mirror of Justice has had links to three Commonweal essays on various aspects of the same-sex marriage decisions: Marc DeGirolami, “Why Standing Matters: Same-Sex Marriage & the Role of the Courts,” Rick Garnett, “Worth Worrying About? Same-Sex Marriage & Religious Freedom,” and Michael Perry, “Right Decision, Wrong Reason: Same-Sex Marriage & the Supreme Court.” All are worth reading in full.
Perry’s stood out for me because his perspective on Justice’s Scalia dissent in United States v. Windsor differed from that of many commentators who spoke or wrote about that decision right after it came down. These others commentators harshly criticized the tone of Scalia’s dissent. Perhaps the most prominent in this category was Harvard Law Professor Laurence Tribe, who used his day-of-decision SCOTUSBlog symposium commentary “to highlight the extraordinary character of [Justice Scalia’s] particularly vitriolic and internally inconsistent dissent.” In contrast with Tribe, Perry writes that “Scalia’s indignation was understandable.”
Perry’s perspective is refreshing because criticisms of passionate judicial expression often track, and are often just another way of reinforcing, critics’ views of the underlying legal merits. Not so in Perry’s Commonweal essay. Perry believes that DOMA is unconstitutional, but he also recognizes that there are (as Scalia put it): “good people on all sides.” Indeed, Perry criticizes Justice Kennedy’s opinion for the majority, which in his view “should not have put any weight on the alleged ‘animus’ of those opposed to same-sex marriage.” That approach, Perry says, is “demeaning to all those who for a host of non-bigoted reasons uphold the traditional understanding of marriage as an essentially heterosexual institution.”