In Battle of 'Two Stooges,' Kennedy Beats Scalia
Andrew Koppelman: DOMA opinion is mess, but to so is the 'fun' dissent
By John Johnson, Newser Staff
Posted Jun 27, 2013 12:46 PM CDT
This artist rendering shows attorney Paul Clement addressing the court on DOMA.   (AP Photo/Dana Verkouteren)

(Newser) – Antonin Scalia's scathing dissent to Anthony Kennedy's DOMA decision has drawn lots of attention because of lines like the one dismissing it as "legalistic argle-bargle." The thing is, Scalia is correct—Kennedy's opinion is a mess, writes Andrew Koppelman at Salon. But so is Scalia's dissent, he adds. "Each justice whacks the other very effectively. Each of them is right about the other’s cluelessness." He likens reading the opinions to "watching the Two Stooges" or a "couple of crazy old uncles bickering."

Kennedy does fine in the part of his decision where he calls DOMA a "bare desire to harm a politically unpopular group.” He should have left it at that, but instead he got caught up in his favorite topic of federalism, which resulted in a confusing and irrelevant section on how DOMA was somehow besmirching states' rights. "I will bet that the liberals who made up Kennedy’s majority could see what a mess his opinion is, but were afraid to point that out to him for fear of offending him and losing his vote," writes Koppelman. Scalia "pounces," and correctly so. But when it comes time for him to defend DOMA, he flops. How could he not, given that it's a "stupid, nasty law," writes Koppelman. Think of the bickering uncles, then, as "comic relief." Click for the full column.

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Showing 3 of 6 comments
digger1
Jul 2, 2013 11:26 PM CDT
Interesting I thought Kennedy dissented and did not cast a vote for or against DOMA or vote against Proposition 8? It appeared that the Chief Justice was the one that had to step in and break the tie so that DOMA could be defeated. All they did on prop 8 was just send it back to Kennedy for review instead of assigning the case to another Justice who may have followed the proper rules of the court? DOMA was a federal only issue where same sex couples could not collect any federal benefits such as social security, file tax returns as Joint filers and of course collect federal pensions and veterans insurance and benefits when their partner died. California like most states provided full rights to same sex couples under their Registered Domestic Partners Law (Family Law section 297.0 and 297.5) So now for those same sex couples who choose not to marry they will loose the Domestic Partner protection because the defeat off Prop 8 will force State law makers to remove this redundant law from the books. The easier way would have been to petition congress to draft and pass new laws that would allow these registered domestic partners to receive such federal benefits in those states that had in force a Domestic Partner Registration law. . I personally have no problem with same sex couples all I ask as a heterosexual person is for them not to force their life style upon me and my children whom I have raised to be morally straight and respectful of their elders wishes as well as to respect authority.
JeffreyP
Jun 27, 2013 3:12 PM CDT
Two stooges, really. The only stooge is Kennedy. Clearly a friend to homosexuals, he continues to put their wishes above the law (natural or otherwise).
sobe
Jun 27, 2013 3:01 PM CDT
Wait.. the third and biggest stooge of them all is Thomas.