"At the end of the day, Section 3 of DOMA was struck down not so much because it intruded upon the policymaking prerogatives of the sovereign states but because—in Kennedy’s words—it 'humiliates,' 'demeans,' 'disapprov[es],' and 'seeks to injure.' It reflects, he charged, a 'bare congressional desire to harm' and 'writes inequality into the entire United States Code.' It is unconstitutional, really, not because it imposes a 'one size fits all' definition and thereby hamstrings state-level experimentation, but because the Court majority thinks it reflects unsound, unreasonable, unenlightened, and unattractive opinions about marriage and family.."Putting aside Garnett's interpretation of Kennedy's reasoning, his second sentence does not follow from the first sentence of "Kennedy's words."
The first sentence, you notice, pertains to Justice Kennedy referencing the harm experienced by same-sex couples and gays and lesbians, and the harm intended, which was also clearly illustrated in DOMA's legislative history wherein the House Committee on the Judiciary clearly stated in 1996 that the law's purpose was to enshrine the disapproval and moral inferiority of homosexuality into law.
Garnett's second sentence, though, includes adjectives that do not reference acknowledge that harm.
Instead of using the descriptor "injurious" he uses "unsound." "Unreasonable." "Unenlightened." "Unattractive." He does so even though DOMA, whether "marriage defenders" admit, acknowledge, or intended it or not, inflicted real injuries on real people - a fact which was demonstrated by the circumstances of the actual plaintiff in Windsor.
As explicit bigotry is less of a winning argument now than it was in 1996, it is interesting to note the shift in strategy in how "marriage defenders" talk about their opposition 1 to same-sex marriage. Legal arguments in favor of same-sex marriage are caricatured and simplified. Rarely, especially in pop conversations by advocates, are pro-equality opinions analyzed for legal substance that evidences an understanding of the ways the legal system has historically marginalized and denigrated gays and lesbians. The pro-equality rationales supporting same-sex marriage are instead cheaply, dog-whistle-y likened to a fashionable garment that, maybe, a swishy trendy man might wear. Justice Kennedy is accused of practically doing nothing but crafting an opinion that utters the word "bigot" over and over and over again.
And yes, of all that's within Justice Kennedy's opinion in Windsor, it is the suggestion that "marriage defenders" enacted it to harm and disapprove of same-sex couples and gays and lesbians that most seems to rankle those who continue to oppose same-sex marriage.
Yet, doesn't the quest and fear-mongering to grant religious opponents of same-sex marriage special exemptions from having to recognize legal same-sex unions even outside the context of having them performed in their religious places of worship give away the game?
We see Christian employers, "for religious reasons," refusing to provide benefits to same-sex couples in violation of state law or public contracts.
We see a Catholic adoption agency, "for religious reasons," refusing to place children in homes of same-sex couples.
We see some county clerks, "for religious reasons," refusing to do their jobs and issue state marriage licenses to same-sex couples in states where such marriages are legal.
If one believes that homosexuality is a sin and that marriage is a thing that can and should only exist between one man and one woman, it is most definitely not a stretch for us to imagine that such a person would want to use special religious exemption laws as a means to express their moral disapproval of same-sex marriage and homosexuality. Their very argument for these exemptions, in fact, is that that they don't want to be "forced" to recognize that which they disapprove of - "for religious reasons."
I can tolerate having to have an argument about whether special laws granting religious folks special exemptions from complying with laws like everyone else has to should exist.
What I refuse to tolerate is the gaslighting insistence that we all pretend that such laws are not about their expressions of moral disapproval of homosexuality, same-sex couples, and same-sex marriage. I refuse to pretend that homobigotry is over when it's not, just because it happens to be some people's firmly-held religious belief that they believe is good and true.
1 I have no idea what Garnett's position is on same-sex marriage, I've just seen multiple opponents of same-sex marriage quote this piece approvingly, citing the purported harms to "religious freedom" due to state recognition of marriage equality.
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