Yesterday’s ruling by the US Supreme Court that the Defense of Marriage Act is unconstitutional, discriminating against gay couples, is a most welcome one indeed. Andrew Sullivan has some pertinent observations about it here. As someone who has been highlighting the feebleness of arguments against gay marriage regularly since 2005, I suppose I should have expected an extreme response to the Supreme Court’s decision in some quarters. But I must say I’m rather surprised by one element of the reaction to it contained in Justice Antonin Scalia’s dissenting opinion. As is said here, Scalia ‘deploys the cries of victimhood’. He does so, in particular, in the following paragraph:
But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence – indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
First of all, it is not only the purpose of the statute but the effect of it that matters, but let that pass. Not everyone will be familiar with the full legal resonance of the phrase hostes humani generis (enemies of the human race), though Justice Scalia himself ought to be. In international law, having been applied initially to those guilty of the crime of piracy, it later came to be extended to those involved in the slave trade, and in due course to individuals responsible for crimes against humanity more generally. So, whether wittingly or not, Scalia is taking on by association here the victimhood burden of a charge of that gravity – that he and the others in the minority on the Court are being treated as if they were criminals against humanity. Which would be severe on them if it were true, but it isn’t.