Attacks on Believers and Homosexual Rights

So says the latest cover of TIME Magazine:

It will be interesting to see what's on the inside of TIME this week!

Baptist Pastor Calls for Execution of Homosexuals

A Baptist "pastor" in Tempe, AZ made a comment: 

"If you execute the homos, you wouldn't have all these AIDS running rampant."

Well, if that quote is accurate - not only is this "pastor" quite irresponsible - he also needs a lesson in grammar.  Executing all homosexuals would, indeed, reduce the number of AIDS cases in the world since the majority of AIDS is still found amongst the homosexual community, but to say that is morally reprehensible, especially for one who claims to be a "pastor."  The equivalent would be to say, "If you executed everyone in north-western Africa, you wouldn't have all these cases of Ebola running rampant."  Again, a true statement, but is it moral to kill everyone in that portion of Africa to eradicate a disease which exists among part of their population?

http://www.fox10phoenix.com/story/27569506/2014/12/07/tempe-pastor-remains-unapologetic-in-his-call-for-christians-to-kill-gay-people

Where is the Christian outcry against this "pastor?"  A friend of mine points out:

The thought came to me today that executing gays was once an idea that the Church tolerated when it was introduced by the Christian Emperors Justinian & Theodosius.

My response was "the Church tolerated a lot of things which were culturally acceptable throughout history."  Case in point, the Church today tolerates the homosexual community!  Considering that homosexuality is an abomination to the Lord, as declared in several places by Scripture, the Church could easily "justify" supporting this Baptist "pastor" and the outlandish statement - but instead she offers a welcome to them, and yes, prays and hopes for their conversion and rejection of the sinful lifestyle, but does not outright reject homosexual persons.

My friend added:

I thought it interesting that locally Fr. (now excommunicated) Vernon Myers spoke up against what the Baptist pastor was saying.

Meyer (now affiliated with the Sun Lakes Church of Christ) was excommunicated from the Catholic Church (automatically, he actually excommunicated himself by the act he took) when he rejected Church authority and "ordained" a woman to the priesthood.  
Perhaps a better rendition of this Baptist "pastor" if found here:

"Because if you executed the homos, like God recommends, you wouldn't have all this AIDS running rampant," http://www.usatoday.com/story/news/nation/2014/12/04/pastor-calls-for-killing-gays-to-end-aids/19929973/

Grammatically, that is better - but still an outrageous statement.  In that article it also mentions Meyer speaking out against the Baptist "pastor."   From what I could find, here is what Meyer said:

"I see a lot of drama," said Pastor Vernon Meyer with Sun Lakes United Church of Christ. "That's very offensive when he says 'homo'."
Anderson does more than use the disparaging term. In his sermon, he stated, "All homos are pedophiles. There, I said it, they're all pedophiles."
"He's a liar," Meyer said.   http://www.azcentral.com/story/news/local/tempe/2014/12/04/12news-tempe-pastor-calls-for-killing-gays-to-end-aids/19903409/

More later on this story...
  

A Good Perspective on Arizona from Massachusetts

http://michaelgraham.com/in-which-i-rise-in-defense-of-arizonas-new-anti-gay-law/ 

Michael Graham, from Massachusetts, expresses many of the same sentiments I have regarding Arizona's "Restore Religious Freedom" act, aka, SB1062 which Governor Brewer vetoed last night.  What I object to is the labeling of this bill as an "anti-gay law," which it is not.  Mr. Graham states the same thing.  Most "news" agencies referred to SB1062 as "Arizona's anti-gay law."

Now, was SB1062 "anti-homosexual" at all?  Read the full text of the ACTUAL BILL and decide:

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Section 41-1493, Arizona Revised Statutes, is amended to read:
41-1493.  DefinitionsIn this article, unless the context otherwise requires:
1.  "Demonstrates" means meets the burdens of going forward with the evidence and of persuasion.
2.  "Exercise of religion" means the PRACTICE OR OBSERVANCE OF RELIGION, INCLUDING THE ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.
3.  "Government" includes this state and any agency or political subdivision of this state.
4.  "Nonreligious assembly or institution" includes all membership organizations, theaters, cultural centers, dance halls, fraternal orders, amphitheaters and places of public assembly regardless of size that a government or political subdivision allows to meet in a zoning district by code or ordinance or by practice.
5.  "Person" includes a religious assembly or institution ANY INDIVIDUAL, ASSOCIATION, PARTNERSHIP, CORPORATION, CHURCH, RELIGIOUS ASSEMBLY OR INSTITUTION OR OTHER BUSINESS ORGANIZATION.
6.  "Political subdivision" includes any county, city, including a charter city, town, school district, municipal corporation or special district, any board, commission or agency of a county, city, including a charter city, town, school district, municipal corporation or special district or any other local public agency.
7.  "Religion‑neutral zoning standards":
(a)  Means numerically definable standards such as maximum occupancy codes, height restrictions, setbacks, fire codes, parking space requirements, sewer capacity limitations and traffic congestion limitations.
(b)  Does not include:
(i)  Synergy with uses that a government holds as more desirable.
(ii)  The ability to raise tax revenues.
8.  "Suitable alternate property" means a financially feasible property considering the person's revenue sources and other financial obligations with respect to the person's exercise of religion and with relation to spending that is in the same zoning district or in a contiguous area that the person finds acceptable for conducting the person's religious mission and that is large enough to fully accommodate the current and projected seating capacity requirements of the person in a manner that the person deems suitable for the person's religious mission.
9.  "Unreasonable burden" means that a person is prevented from using the person's property in a manner that the person finds satisfactory to fulfill the person's religious mission.
Sec. 2.  Section 41-1493.01, Arizona Revised Statutes, is amended to read:
41-1493.01.  Free exercise of religion protected; definitionA.  Free exercise of religion is a fundamental right that applies in this state even if laws, rules or other government actions are facially neutral.
B.  Except as provided in subsection C, government OF THIS SECTION, STATE ACTION shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability.
C.  Government STATE ACTION may substantially burden a person's exercise of religion only if it THE GOVERNMENT OR NONGOVERNMENTAL PERSON SEEKING THE ENFORCEMENT OF STATE ACTION demonstrates that application of the burden to the person PERSON'S EXERCISE OF RELIGION IN THIS PARTICULAR INSTANCE is both:
1.  In furtherance of a compelling governmental interest.
2.  The least restrictive means of furthering that compelling governmental interest.
D.  A person whose religious exercise is burdened in violation of this section may assert that violation as a claim or defense in a judicial proceeding, and obtain appropriate relief against a government REGARDLESS OF WHETHER THE GOVERNMENT IS A PARTY TO THE PROCEEDING.E.  A PERSON THAT ASSERTS A VIOLATION OF THIS SECTION MUST ESTABLISH ALL OF THE FOLLOWING:1.  THAT THE PERSON'S ACTION OR REFUSAL TO ACT IS MOTIVATED BY A RELIGIOUS BELIEF.2.  THAT THE PERSON'S RELIGIOUS BELIEF IS SINCERELY HELD.3.  THAT THE STATE ACTION SUBSTANTIALLY BURDENS THE EXERCISE OF THE PERSON'S RELIGIOUS BELIEFS.F.  THE PERSON ASSERTING A CLAIM OR DEFENSE UNDER SUBSECTION D OF THIS SECTION MAY OBTAIN INJUNCTIVE AND DECLARATORY RELIEF.  A party who prevails in any action to enforce this article against a government shall recover attorney fees and costs.
E.  G.  In FOR THE PURPOSES OF this section, the term substantially burden is intended solely to ensure that this article is not triggered by trivial, technical or de minimis infractions.
H.  FOR THE PURPOSES OF THIS SECTION, "STATE ACTION" MEANS ANY ACTION, EXCEPT FOR THE REQUIREMENTS PRESCRIBED BY SECTION 41-1493.04, BY THE GOVERNMENT OR THE IMPLEMENTATION OR APPLICATION OF ANY LAW, INCLUDING STATE AND LOCAL LAWS, ORDINANCES, RULES, REGULATIONS AND POLICIES, WHETHER STATUTORY OR OTHERWISE, AND WHETHER THE IMPLEMENTATION OR APPLICATION IS MADE BY THE GOVERNMENT OR NONGOVERNMENTAL PERSONS.http://www.azleg.gov/FormatDocument.asp?inDoc=/legtext/51leg/2r/bills/sb1062s.htm&Session_ID=112

There is absolutely nothing in the bill about being anti-homosexual - or anti-anything!  In fact, ultimately, this bill could have been used to protect the rights/liberties of homosexuals and other minorities.  Why is a bill which is pro-religious freedom (a Constitutional right) automatically an anti-homosexual bill?

What if a guy wearing a white hooded robe walks in to a print shop owned by an African-American and requests fliers for an upcoming KKK meeting be printed - does that business owner have the right to refuse to serve the KKK?  Alright, that's an extreme example - but the rights and freedoms are identical to the rights and freedoms SB1062 was intended to protect.  So what's the difference?  If this same business owner happens to be very Christian and opposes homosexuality for religious reasons, could he be forced to print "wedding" announcements for a homosexual couple?  Why?  That's pretty much what happened in New Mexico to a photographer who refused to photograph the civil union ceremony of a homosexual couple.  The couple turned around and sued the photographer - and won!  How absurd!

All that being said, below is the transcript of Governor Brewer's announcement:

I am here to announce my decision on Senate Bill 1062.
As with every proposal that reaches my desk, I gave Senate Bill 1062 careful evaluation and deliberate consideration. I call them like I see them, despite the cheers or boos from the crowd.
I took the time necessary to make the RIGHT decision. I met or spoke with my attorneys, lawmakers and citizens supporting and opposing this legislation.
I listened . . . and asked questions.
As Governor, I have protected religious freedoms when there is a specific and present concern that exists in OUR state.
And I have the record to prove it.
My agenda is to sign into law legislation that advances Arizona.
When I addressed the Legislature earlier this year, I made my priorities for this session abundantly clear…
Among them are passing a responsible budget that continues Arizona’s economic Comeback.
From CEOs -- to entrepreneurs -- to business surveys -- Arizona ranks as one the best states
to grow or start a business.
Additionally, our IMMEDIATE challenge is fixing a broken Child Protection system.
Instead, this is the first policy bill to cross my desk.
Senate Bill 1062 does not address a specific and present concern related to religious liberty in
Arizona. I have not heard of one example in Arizona where a business owner’s religious liberty
has been violated.
The bill is broadly worded and could result in unintended and negative consequences.
After weighing all of the arguments, I vetoed Senate Bill 1062 moments ago.
To the supporters of the legislation, I want you to know that I understand that long-held norms
about marriage and family are being challenged as never before.
Our society is undergoing many dramatic changes. However, I sincerely believe that Senate
Bill 1062 has the potential to create more problems than it purports to solve.
It could divide Arizona in ways we cannot even imagine and no one would ever want.
Religious liberty is a core American and Arizona value, so is non-discrimination.
Going forward, let’s turn the ugliness of the debate over Senate Bill 1062 into a renewed
search for greater respect and understanding among ALL Arizonans and Americans.
Thank you.
http://www.azgovernor.gov/dms/upload/GS_022614_SB1062Remarks.pdf

I have to agree with Governor Brewer's analysis and decision.  Thank you, Governor Brewer.

Arizona SB1062

This bill has been labeled across the country as an anti-homosexual bill, when in fact - it is not.  The intention of SB1062 was to promote the rights of business and church groups to not be forced to perform service(s) which may be in conflict with their own moral beliefs - religious or otherwise.  The fact is, it is an unnecessary bill.  Businesses already have the right to refuse service to anyone - it's their prerogative to do so.  If they turn away business - it's their bottom line which is at stake.  Those who oppose such a stance are free to take their business elsewhere.  

Since this new bill really doesn't DO anything, it's silly legislation which is only allowing the state to be opened to unnecessary attacks from some with an agenda to oppose anyone exercising personal freedoms.  It can only bring upon calls for sanctions or boycotts - and really, again, the intent of the bill was not to put down any particular group, but to recognize the rights of other groups.  

I still find it ironic that roughly 3.5% of the population gets so much attention!  When greater than 96% do not share in the homosexual lifestyle, why do we spend so much time debating the topic?  (See stats sited on the CathApol Blog).  Certainly, in this country, individuals who wish to pursue a lifestyle which is morally contrary to others have the right to do so - so long as their pursuit of such a right does not trample upon the rights of those who do not share their moral (or amoral) view.  In short, homosexuals do not have the right to force their morality upon those who "rightfully" oppose them.  

Still, I repeat, SB 1062 really doesn't do anything that individuals do not already have the right to do, or not do!  For THIS reason, I would recommend that Governor Brewer does NOT sign this bill into law.  She has until the end of the week to decide.

Please feel free to share your thoughts and/or share this article!  .

Justice Scalia Dissent in DOMA Full Text

Cite as: 570 U. S. ____ (2013)

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

No. 12–307

UNITED STATES, PETITIONER

v.

EDITH SCHLAIN WINDSOR,

IN HER CAPACITY AS EXECUTOR OF THE

ESTATE OF THEA CLARA SPYER,

ET AL

.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

[June 26, 2013]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and with whom THE CHIEF JUSTICE joins as to Part I, dissenting.

This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today’s opinion aggrandizes the latter, with the predictable onsequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

I

A

The Court is eager—hungry—to tell everyone its view of the legal question at the heart of this case. Standing in the way is an obstacle, a technicality of little interest to anyone but the people of We the People, who created it as a barrier against judges’ intrusion into their lives. They gave judges, in Article III, only the “judicial Power,” a power to decide not abstract questions but real, concrete “Cases” and “Controversies.” Yet the plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?  The answer lies at the heart of the jurisdictional portion of today’s opinion, where a single sentence lays bare the majority’s vision of our role.

The Court says that we have the power to decide this case because if we did not, then our “primary role in determining the constitutionality of a law” (at least one that “has inflicted real injury on a plaintiff ”) would “become only secondary to the President’s.”   Ante, at 12. But wait, the reader wonders—Windsor won below, and so cured her injury, and the President was glad to see it. True, says the majority, but judicial review must march on regardless, lest we “undermine the clear dictate of the separation-of-powers principle that when an Act of Congress is alleged to conflict with the Constitution, it is emphatically the province and duty of the judicial department to say what the law is.”  Ibid.  (internal quotation marks and brackets omitted).

That is jaw-dropping. It is an assertion of judicial supremacy over the people’s Representatives in Congress

and the Executive. It envisions a Supreme Court standing (or rather enthroned) at the apex of government, empowered to decide all constitutional questions, always and everywhere “primary” in its role.

This image of the Court would have been unrecognizable to those who wrote and ratified our national charter. They knew well the dangers of “primary” power, and so created branches of government that would be “perfectly coordinate by the terms of their common commission,” none of which branches could “pretend to an exclusive or superior right of settling the boundaries between their respective powers.” The Federalist, No. 49, p. 314 (C. Rossitered. 1961) (J. Madison). The people did this to protect themselves. They did it to

guard their right to self-rule against the black-robed supremacy that today’s majority finds so attractive. So it was that Madison could confidently state, with no fear of contradiction, that there was nothing of “greater intrinsic value” or “stamped with the authority of more enlightened patrons of liberty” than a government of separate and coordinate powers.  Id ., No. 47, at 301.   For this reason we are quite forbidden to say what the law is whenever (as today’s opinion asserts) “‘an Act of Congress is alleged to conflict with the Constitution.’”  Ante , at 12.

We can do so only when that allegation will determine the outcome of a lawsuit, and is contradicted by the other party. The “judicial Power” is not, as the majority believes, the power “‘to say what the law is,’” ibid.,

giving the Supreme Court the “primary role in determining the constitutionality of laws.” The majority must have in mind one of the foreign constitutions that pronounces such primacy for its constitutional court and allows that primacy to be exercised in contexts other than a lawsuit.  See, e.g., Basic Law for the Federal Republic of Germany, Art. 93. The judicial power as Americans have understood it (and their English ancestors before them) is the power to adjudicate, with conclusive effect, disputed government claims (civil or criminal) against private persons, and disputed claims by private persons against the government or other private persons. Sometimes (though not always) the parties before the court disagree not with regard to the facts of their case (or not only with regard to the facts) but with regard to the applicable law—in which event (and only in which event) it becomes the “‘province and duty of the judicial department to say what the law

is.’”  Ante , at 12.

In other words, declaring the compatibility of state or federal laws with the Constitution is not only not the “primary role” of this Court, it is not a separate, free standing role at all.  We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’” That is why, in 1793, we politely declined the Washington Administration’s request to “say what the law is” on a particular treaty matter that was not the subject of a concrete legal controversy. Correspondence and Public Papers of John Jay 486–489 (H. Johnston ed. 1893). And that is why, as our opinions have said, some questions of law will never be presented to this Court, because there will never be anyone with standing to bring a lawsuit. See Schlesinger v. Reservists Comm. to Stop the War, 418 U. S. 208, 227 (1974);  United States v. Richardson, 418 U. S. 166, 179 (1974). As Justice Brandeis put it, we cannot “pass up on the constitutionality of legislation in a friendly, non-adversary, proceeding”; absent a “‘real, earnest and vital controversy between individuals,’” we have neither any work to do nor any power to do it.  Ashwander v. TVA, 297 U. S. 288, 346 (1936) (concurring opinion) (quoting Chicago & Grand Trunk R. Co. v. Wellman, 143 U. S. 339, 345 1892)).

Our authority begins and ends with the need to adjudge the rights of an injured party who stands before us seeking redress.   Lujan v. Defenders of Wildlife, 504 U. S. 555, 560 (1992).  That is completely absent here. Windsor’s injury was cured by the judgment in her favor. And while, in ordinary circumstances, the United States is injured by a directive to pay a tax refund, this suit is far from ordinary.

Whatever injury the United States has suffered will surely not be redressed by the action that it, as a litigant, asks us to take. The final sentence of the Solicitor General’s brief on the merits reads: “For the foregoing reasons, the judgment of the court of appeals should be affirmed.” Brief for United States (merits) 54 (emphasis added). That will not cure the Government’s injury, but carve it into stone. One could spend many fruitless afternoons ransacking our library for any other petitioner’s brief seeking an affirmance of the judgment against it.  What the petitioner United States asks us to do in the case before us is exactly what the respondent Windsor asks us to do: not to provide relief from the judgment below but to say that that judgment was correct. And the same was true in the Court of Appeals: Neither party sought to undo the judgment for Windsor, and so that court should have dismissed the appeal (just as we should dismiss) for lack of jurisdiction.  Since both parties agreed with the judgment of the District Court for the Southern District of New York, the suit should have ended there. The further proceedings have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect in other courts, to one that has precedential effect throughout the Second Circuit, and then (in this Court) precedential effect throughout the United States.

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer. The United States reluctantly conceded that at oral argument. See Tr. of Oral Arg. 19–20.  The closest we have ever come to what the Court blesses today was our opinion in INS v. Chadha, 462 U. S. 919 (1983). But in that case, two parties to the litigation disagreed with the position of the United States and with the court below: the House and Senate, which had intervened in the case. Because Chadha concerned the validity of a mode of congressional action—the one-house legislative veto—the House and Senate were threatened with destruction of what they claimed to be one of their institutional powers. The Executive choosing not to defend that power, we permitted the House and Senate to intervene.  Nothing like that is present here.  To be sure, the Court in Chadha said that statutory aggrieved-party status was “not altered by the fact that the Executive may agree with the holding that the statute in question is unconstitutional.”  Id., at 930–931. But in a footnote to that statement, the Court acknowledged Article III’s separate requirement of a “justiciable case or controversy,” and stated that this requirement was satisfied “because of the presence of the two Houses of Congress as adverse parties.”  Id., at 931, n. 6. Later in its opinion, the Chadha Court remarked that the United States’ announced intention to enforce the statute also sufficed to permit judicial review, even absent congressional participation. Id., at 939. That remark is true, as a description of the judicial review conducted in the Court of Appeals, where the Houses of Congress had not intervened. (The case originated in the Court of Appeals, since it sought review of agency action under 8 U. S. C. §1105a(a) (1976 ed.).) There, absent a judgment setting aside the INS order, Chadha faced deportation. This passage of our opinion seems to be addressing that initial standing in the Court of Appeals, as indicated by its quotation from the lower court’s opinion, 462 U. S., at 939–940.  But if it was addressing standing to pursue the appeal, the remark was both the purest dictum (as congressional intervention at that point made the required adverseness “beyond doubt,” id., at 939), and quite incorrect. When a private party has a judicial decree safely in hand to prevent his injury, additional judicial action requires that a party injured by the decree seek to undo it.  In Chadha, the intervening House and Senate fulfilled that requirement. Here no one does.

The majority’s discussion of the requirements of Article III bears no resemblance to our jurisprudence. It accuses the amicus (appointed to argue against our jurisdiction) of “elid[ing] the distinction between . . . the jurisdictional requirements of Article III and the prudential limits on its exercise.”  Ante, at 6. It then proceeds to call the requirement of adverseness a “prudential” aspect of standing. Of standing.  That is incomprehensible. A plaintiff (or appellant) can have all the standing in the world—satisfying all three standing requirements of Lujan that the majority so carefully quotes, ante, at 7—and yet no Article III controversy may be before the court. Article III requires not just a plaintiff (or appellant) who has standing to complain but an opposing party who denies the validity of the complaint. It is not the amicus that has done the eliding of distinctions, but the majority, calling the quite separate Article III requirement of adverseness between the parties an element (which it then pronounces a “prudential” element) of standing. The question here is not whether, as the majority puts it, “the United States retains a stake sufficient to support Article III jurisdiction,” ibid. the question is whether there is any controversy (which requires contradiction) between the United States and Ms. Windsor. There is not.  I find it wryly amusing that the majority seeks to dismiss the requirement of party-adverseness as nothing more than a “prudential” aspect of the sole Article III requirement of standing. (Relegating a jurisdictional requirement to “prudential” status is a wondrous device, enabling courts to ignore the requirement whenever they believe it “prudent”—which is to say, a good idea.) Half a century ago, a Court similarly bent upon announcing its view regarding the constitutionality of a federal statute achieved that goal by effecting a remarkably similar but completely opposite distortion of the principles limiting our jurisdiction. The Court’s notorious opinion in Flast v. Cohen, 392 U. S. 83, 98–101 (1968), held that standing was merely an element (which it pronounced to be a “prudential” element) of the sole Article III requirement of adverseness. We have been living with the chaos created by that power-grabbing decision ever since, see Hein v. Freedom From Religion Foundation, Inc., 551 U. S. 587 (2007), as we will have to live with the chaos created by this one.

The authorities the majority cites fall miles short of supporting the counterintuitive notion that an Article III

“controversy” can exist without disagreement between the parties. In Deposit Guaranty Nat. Bank v. Roper, 445 U. S. 326 (1980), the District Court had entered judgment in the individual plaintiff ’s favor based on the defendant bank’s offer to pay the full amount claimed. The plaintiff, however, sought to appeal the District Court’s denial of class certification under Federal Rule of Civil Procedure 23.  There was a continuing dispute between the parties concerning the issue raised on appeal. The same is true of the other case cited by the majority, Camreta v. Greene, 563 U. S. ___ (2011). There the District Court found that the defendant state officers had violated the Fourth Amendment, but rendered judgment in their favor because they were entitled to official immunity, application of the Fourth Amendment to their conduct not having been clear at the time of violation. The officers sought to appeal the holding of Fourth Amendment violation, which would circumscribe their future conduct; the plaintiff continued to insist that a Fourth Amendment violation had occurred.  The “prudential” discretion to which both those cases refer was the discretion to deny an appeal even when a live controversy exists—not the discretion to grant one when it does not. The majority can cite no case in which this Court entertained an appeal in which both parties urged us to affirm the judgment below. And that is because the existence of a controversy is not a “prudential” requirement that we have invented, but an essential element of an Article III case or controversy. The majority’s notion that a case between friendly parties can be entertained so long as “adversarial presentation of the issues is assured

by the participation of amici curiae prepared to defend with vigor” the other side of the issue, ante, at 10, effects a breathtaking revolution in our Article III jurisprudence.

It may be argued that if what we say is true some Presidential determinations that statutes are unconstitutional

will not be subject to our review. That is as it should be, when both the President and the plaintiff agree that

the statute is unconstitutional. Where the Executive is enforcing an unconstitutional law, suit will of course lie; but if, in that suit, the Executive admits the unconstitutionality of the law, the litigation should end in an order or a consent decree enjoining enforcement. This suit saw the light of day only because the President enforced the Act (and thus gave Windsor standing to sue) even though he believed it unconstitutional. He could have equally chosen (more appropriately, some would say) neither to enforce nor to defend the statute he believed to be unconstitutional, see Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (Nov. 2, 1994)—in which event Windsor would not have been injured, the District Court could not have refereed this friendly scrimmage, and the Executive’s determination of unconstitutionality would have escaped this Court’s desire to blurt out its view of the law. The matter would have been left, as so many matters ought to be left, to a tug of war between the President and the Congress, which has innumerable means (up to and including impeachment) of compelling the President to enforce the laws it has written. Or the President could have evaded presentation of the constitutional issue to this Court simply by declining to appeal the District Court and Court of Appeals dispositions he agreed with. Be sure of this much: If a President wants to insulate his judgment of unconstitutionality from our review, he can. What the views urged in this dissent produce is not insulation from judicial review but insulation from Executive contrivance.

The majority brandishes the famous sentence from Marbury v. Madison, 1 Cranch 137, 177 (1803) that “[i]t is

emphatically the province and duty of the judicial department to say what the law is.” Ante, at 12 (internal quotation marks omitted). But that sentence neither says nor implies that it is always the province and duty of the Court to say what the law is—much less that its responsibility in that regard is a “primary” one. The very next sentence of Chief Justice Marshall’s opinion makes the crucial qualification that today’s majority ignores: “Those who apply the rule to particular cases, must of necessity expound and interpret that rule.” 1 Cranch, at 177 (emphasis added). Only when a “particular case” is before us—that is, a controversy that it is our business to resolve under Article III—do we have the province and duty to pronounce the law. For the views of our early Court more precisely addressing the question before us here, the majority ought instead to have consulted the opinion of Chief Justice Taney in Lord v. Veazie, 8 How. 251 (1850):

“The objection in the case before us is . . . that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.

“A judgment entered under such circumstances, and for such purposes, is a mere form. The whole proceeding was in contempt of the court, and highly reprehensible . . . . A judgment in form, thus procured, in the eye of the law is no judgment of the court. It is a nullity, and no writ of error will lie upon it. This writ is, therefore, dismissed.”  Id., at 255–256.

There is, in the words of Marbury, no “necessity [to] expound and interpret” the law in this case; just a desire

to place this Court at the center of the Nation’s life.  1 Cranch, at 177.

B

A few words in response to the theory of jurisdiction set forth in JUSTICE ALITO’s dissent: Though less far reaching in its consequences than the majority’s conversion of constitutionally required adverseness into a discretionary element of standing, the theory of that dissent similarly elevates the Court to the “primary” determiner of constitutional questions involving the separation of powers, and, to boot, increases the power of the most dangerous branch: the “legislative department,” which by its nature “draw[s] all power into its impetuous vortex.” The Federalist, No. 48, at 309 (J. Madison). Heretofore in our national history, the President’s failure to “take Care that the Laws be faithfully executed,” U. S. Const., Art. II, §3, could only be brought before a judicial tribunal by someone whose concrete interests were harmed by that alleged failure.  JUSTICE ALITO would create a system in which Congress can hale the Executive before the courts not only to vindicate its own institutional powers to act, but to correct a perceived inadequacy in the execution of its laws. This would lay to rest Tocqueville’s praise of our judicial system as one which “intimately bind[s] the case made for the law with the case made for one man,” one in which legislation is “no longer exposed to the daily aggression of the parties,” and in which “[t]he political question that [the judge] must resolve is linked to the interest” of private litigants.  A. de Tocqueville, Democracy in America 97 (H. Mansfield & D. Winthrop eds. 2000). That would be replaced by a system in which Congress and the Executive can pop immediately into court, in their institutional capacity, whenever the President refuses to implement a statute he believes to be unconstitutional, and whenever he implements a law in a manner that is not to Congress’s liking. JUSTICE ALITO’s notion of standing will likewise enormously shrink the area to which “judicial censure, exercised by the courts on legislation, cannot extend,” ibid. For example, a bare majority of both Houses could bring into court the assertion that the Executive’s implementation of welfare programs is too generous—a failure that no other litigant would have standing to complain about. Moreover, as we indicated in Raines v. Byrd, 521 U.S.811, 828 (1997), if Congress can sue the Executive for the erroneous application of the law that “injures” its power to legislate, surely the Executive can sue Congress for its erroneous adoption of an unconstitutional law that “injures” the Executive’s power to administer—or perhaps for its protracted failure to act on one of his nominations. The opportunities for dragging the courts into disputes hitherto left for political resolution are endless.  JUSTICE ALITO’s dissent is correct that Raines did not formally decide this issue, but its reasoning does. The opinion spends three pages discussing famous, decades-long disputes between the President and Congress—regarding congressional power to forbid the Presidential removal of executive officers, regarding the legislative veto, regarding congressional appointment of executive officers, and regarding the pocket veto—that would surely have been promptly resolved by a Congress-vs.-the-President lawsuit if the impairment of a branch’s powers alone conferred standing to commence litigation. But it does not, and never has; the “enormous power that the judiciary would acquire” from the ability to adjudicate such suits “would have made a mockery of [Hamilton’s] quotation of Montesquieu to the effect that ‘of the three powers above mentioned . . . the JUDICIARY is next to nothing.’”  Barnes v. Kline, 759 F. 2d 21, 58 (CADC 1985) (Bork, J., dissenting) (quoting The Federalist No. 78 (A. Hamilton)).

To be sure, if Congress cannot invoke our authority in the way that JUSTICE ALITO proposes, then its only recourse is to confront the President directly. Unimaginable evil this is not. Our system is designed for confrontation.  That is what “[a]mbition . . . counteract[ing] ambition,” The Federalist, No. 51, at 322 (J. Madison), is all about. If majorities in both Houses of Congress care enough about the matter, they have available innumerable ways to compel executive action without a lawsuit—from refusing to confirm Presidential appointees to the elimination of funding. (Nothing says “enforce the Act” quite like “. . . or

you will have money for little else.”) But the condition is crucial; Congress must care enough to act against the President itself, not merely enough to instruct its lawyers to ask us to do so. Placing the Constitution’s entirely anticipated political arm wrestling into permanent judicial receivership does not do the system a favor. And by the way, if the President loses the lawsuit but does not faithfully implement the Court’s decree, just as he did not faithfully implement Congress’s statute, what then? Only Congress can bring him to heel by . . . what do you think?  Yes: a direct confrontation with the President.

II

For the reasons above, I think that this Court has, and the Court of Appeals had, no power to decide this suit. We should vacate the decision be low and remand to the Court of Appeals for the Second Circuit, with instructions to dismiss the appeal. Given that the majority has volunteered its view of the merits, however, I proceed to discuss that as well.

A

There are many remarkable things about the majority’s merits holding. The first is how rootless and shifting its justifications are. For example, the opinion starts with seven full pages about the traditional power of States to define domestic relations—initially fooling many readers, I am sure, into thinking that this is a federalism opinion.  But we are eventually told that “it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution,” and that “[t]he State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism” because “the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import.” Ante, at 18. But no one questions the power of the States to define marriage (with the concomitant conferral of dignity and status), so what is the point of devoting seven pages to describing how long and well stablished that power is? Even after the opinion has formally disclaimed reliance upon principles of federalism, mentions of “the usual tradition of recognizing and accepting state definitions of marriage” continue. See, e.g., ante, at 20. What to make of this? The opinion never explains.  My guess is that the majority, while reluctant to suggest that defining the meaning of “marriage” in federal statutes is unsupported by any of the Federal Government’s enumerated powers, nonetheless needs some rhetorical basis to support its pretense that today’s prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term). But I am only guessing.  Equally perplexing are the opinion’s references to “the Constitution’s guarantee of equality.” Ibid. Near the end

of the opinion, we are told that although the “equal protection guarantee of the Fourteenth Amendment makes [the] Fifth Amendment [due process] right all the more specific and all the better understood and reserved”—what can that mean?—“the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does.” Ante, at 25. The only possible interpretation of this statement is that the Equal Protection Clause, even the Equal Protection Clause as incorporated in the Due Process Clause, is not the basis for today’s holding.  But the portion of the majority opinion that explains why DOMA is unconstitutional (Part IV) begins by citing Bolling v. Sharpe, 347 U. S. 497 (1954), Department of Agriculture v. Moreno, 413 U. S. 528 (1973), and Romer v. Evans, 517 U. S. 620 (1996)—all of which are equal protection cases.  And those three cases are the only authorities that the Court cites in Part IV about the Constitution’s meaning, except for its citation of  Lawrence v. Texas, 539 U. S. 558 (2003) (not an equal protection case) to support its passing assertion that the Constitution protects the “moral and sexual choices” of same-sex couples, ante, at 23.   Moreover, if this is meant to be an equal-protection opinion, it is a confusing one. The opinion does not resolve and indeed does not even mention what had been the central question in this litigation: whether, under the Equal Protection Clause, laws restricting marriage to a man and a woman are reviewed for more than mere rationality. That is the issue that divided the parties and the court below, compare Brief for Respondent Bipartisan Legal Advisory Group of U. S. House of Representatives (merits) 24–28 (no), with Brief for Respondent Windsor (merits) 17–31 and Brief for United States (merits) 18–36 (yes); and compare 699 F. 3d 169, 180–185 (CA2 2012) (yes), with id., at 208–211 (Straub, J., dissenting in part and concurring in part) (no). In accord with my previously expressed skepticism about the Court’s “tiers of scrutiny” approach, I would review this classification only for its rationality. See United States v. Virginia, 518 U. S. 515, 567–570 (1996) (SCALIA , J., dissenting). As nearly as I can tell, the Court agrees with that; its opinion does not apply strict scrutiny, and its central propositions are taken from rational-basis cases like Moreno. But the Court certainly does not apply anything that resembles that deferential framework. See Heller v. Doe, 509 U. S. 312, 320 (1993) (a classification “‘must be upheld . . . if there is any reasonably conceivable state of facts’” that could justify it). 

The majority opinion need not get into the strict-vs.-rational-basis scrutiny question, and need not justify its

holding under either, because it says that DOMA is unconstitutional as “a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution,” ante, at 25; that it violates “basic due process” principles, ante, at 20; and that it inflicts an “injury and indignity” of a kind that denies “an essential part of the liberty protected by the Fifth Amendment,” ante, at 19. The majority never utters the dread words “substantive due process,” perhaps sensing the disrepute into which that doctrine has fallen, but that is what

those statements mean. Yet the opinion does not argue that same-sex marriage is “deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, 521 U. S. 702, 720–721 (1997), a claim that would of course be quite absurd. So would the further suggestion (also necessary, under our substantive-due-process precedents) that a world in which DOMA exists is one bereft of “‘ordered liberty.’” Id., at 721 (quoting Palko v. Connecticut, 302 U. S. 319, 325 (1937)).  Some might conclude that this loaf could have used a while longer in the oven. But that would be wrong; it is already overcooked. The most expert care in preparation cannot redeem a bad recipe. The sum of all the Court’s nonspecific hand-waving is that this law is invalid (maybe on equal-protection grounds, maybe on substantive-due-process grounds, and perhaps with some amorphous federalism component playing a role) because it is motivated by a “‘bare . . . desire to harm’” couples in same-sex marriages. Ante, at 20. It is this proposition with which I will therefore engage.

B

As I have observed before, the Constitution does not forbid the government to enforce traditional moral and

sexual norms. See Lawrence v. Texas, 539 U. S. 558, 599 (2003) (SCALIA, J., dissenting). I will not swell the U. S. Reports with restatements of that point. It is enough to say that the Constitution neither requires nor forbids our society to approve of same-sex marriage, much as it neither requires nor forbids us to approve of no-fault divorce, polygamy, or the consumption of alcohol.  However, even setting aside traditional moral disapproval of same-sex marriage (or indeed same-sex sex), there are many perfectly valid—indeed, downright boring—justifying rationales for this legislation. Their existence ought to be the end of this case. For they give the lie to the Court’s conclusion that only those with hateful hearts could have voted “aye” on this Act. And more importantly, they serve to make the contents of the legislators’ hearts quite irrelevant: “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” United States v. O’Brien, 391 U.S. 367, 383 (1968). Or at least it was a familiar principle. By holding to the contrary, the majority has declared open season on any law that (in the opinion of the law’s opponents and any panel of like-minded federal judges)

can be characterized as mean-spirited.  The majority concludes that the only motive for this Act was the “bare . . . desire to harm a politically unpopular group.” Ante, at 20. Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s

scorn, see, e.g. , Edwards v. Aguillard, 482 U. S. 578 (1987)), but our respected coordinate branches, the Congress and Presidency of the United States. Laying such a charge against them should require the most extraordinary evidence, and I would have thought that every attempt would be made to indulge a more anodyne explanation for the statute. The majority does the opposite—affirmatively concealing from the reader the arguments that exist in justification.  It makes only a passing mention of the “arguments put forward” by the Act’s defenders, and does not even trouble to paraphrase or describe them.  See ante, at 21. I imagine that this is because it is harder to maintain the illusion of the Act’s supporters as unhinged members of a wild-eyed lynch mob when one first describes their views as they see them.  To choose just one of these defenders’ arguments, DOMA avoids difficult choice-of-law issues that will now arise absent a uniform federal definition of marriage. See, e.g., Baude, Beyond DOMA: Choice of State Law in Federal Statutes, 64 Stan. L. Rev. 1371 (2012). Imagine a pair of women who marry in Albany and then move to Alabama, which does not “recognize as valid any marriage of parties of the same sex.” Ala. Code §30–1–19(e) (2011).  When the couple files their next federal tax return, may it be a joint one? Which State’s law controls, for federal-law purposes: their State of celebration (which recognizes the marriage) or their State of domicile (which does not)?  (Does the answer depend on whether they were just visiting in Albany?) Are these questions to be answered as a matter of federal common law, or perhaps by borrowing a State’s choice-of-law rules? If so,which State’s? And what about States where the status of an out-of-state same-sex marriage is an unsettled question under local law? See Godfrey v. Spano, 13 N. Y. 3d 358, 920 N. E. 2d 328 (2009). DOMA avoided all of this uncertainty by specifying which marriages would be recognized for federal purposes. That is a classic purpose for a definitional provision. 

Further, DOMA preserves the intended effects of prior legislation against then-unforeseen changes in circumstance. When Congress provided (for example) that a special estate-tax exemption would exist for spouses, this exemption reached only opposite-sex spouses—those being the only sort that were recognized in any State at the time of DOMA’s passage. When it became clear that changes in state law might one day alter that balance, DOMA’s definitional section was enacted to ensure that state-level experimentation did not automatically alter the basic operation of federal law, unless and until Congress made the further judgment to do so on its own. That is not animus—just stabilizing prudence. Congress has hardly demonstrated itself unwilling to make such further, revising judgments upon due deliberation. See, e.g., Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515.  The Court mentions none of this. Instead, it accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational.  Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the “purpose” (ante, at 25) “to disparage and to injure” same-sex couples. It says that the motivation for DOMA was to “demean,” ibid .; to “impose inequality,” ante, at 22; to “impose . . . a stigma,” ante, at 21; to deny people “equal dignity,” ibid.;  to brand gay people as “unworthy,” ante, at 23; and to “humiliat[e]” their children, ibid. (emphasis added).

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called

the Defense of Marriage Act. 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.

* * *

The penultimate sentence of the majority’s opinion is a naked declaration that “[t]his opinion and its holding are confined” to those couples “joined in same-sex marriages made lawful by the State.” Ante, at 26, 25. I have heard such “bald, unreasoned disclaimer[s]” before.  Lawrence, 539 U. S., at 604. When the Court declared a constitutional right to homosexual sodomy, we were assured that the case had nothing, nothing at all to do with “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Id., at 578.   Now we are told that DOMA is invalid because it “demeans the couple, whose moral and sexual choices the Constitution protects,” ante, at 23—with an accompanying citation of Lawrence.  It takes real cheek for today’s majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority’s moral judgment in favor of same-sex marriage is to the Congress’s hateful moral judgment against it. I promise you this: The only thing that will “confine” the Court’s holding is its sense of what it can get away with.  I do not mean to suggest disagreement with THE CHIEF JUSTICE’s view, ante, p. 2–4 (dissenting opinion), that lower federal courts and state courts can distinguish today’s case when the issue before them is state denial of marital status to same-sex couples—or even that this Court could theoretically do so.  Lord, an opinion with such scatter-shot rationales as this one (federalism noises among them) can be distinguished in many ways. And deserves to be. State and lower federal courts should take the Court at its word and distinguish away.   In my opinion, however, the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistaking by today’s opinion. As I have said, the real rationale of today’s opinion, whatever disappearing trail of its legalistic argle-bargle one chooses to follow, is that DOMA is motivated by “‘bare . . . desire to harm’” couples in same-sex marriages.  Supra, at 18. How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status. Consider how easy (inevitable) it is to make the following substitutions in a passage from today’s opinion ante, at 22:

“DOMA’s This state law’s principal effect is to identify a subset of state-sanctioned marriages constitutionally protected sexual relationships, see Lawrence, and make them unequal. The principal purpose is to impose inequality, not for other reasons like governmental efficiency. Responsibilities, as well as rights, enhance the dignity and integrity of the person.  And DOMA this state law contrives to deprive some couples married under the laws of their State enjoying constitutionally protected sexual relationships, but not other couples, of both rights and responsibilities.”  

Or try this passage, from ante, at 22–23:

“[DOMA] This state law tells those couples, and all the world, that their otherwise valid marriages relationships are unworthy of federal state recognition.  This places same-sex couples in an unstable position of being in a second-tier marriage relationship. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, . . . .”  

Or this, from ante, at 23—which does not even require alteration, except as to the invented number:  

“And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.”

Similarly transposable passages—deliberately transposable, I think—abound. In sum, that Court which finds it so horrific that Congress irrationally and hatefully robbed same-sex couples of the “personhood and dignity” which state legislatures conferred upon them, will of a certitude be similarly appalled by state legislatures’ irrational and hateful failure to acknowledge that “personhood and dignity” in the first place. Ante, at 26.  As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe.  By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is “no

legitimate purpose” served by such a law, and will claim that the traditional definition has “the purpose and effect to disparage and to injure” the “personhood and dignity” of same-sex couples, see ante, at 25, 26. The majority’s limiting assurance will be meaningless in the face of language like that, as the majority well knows. That is why the language is there. The result will be a judicial distortion of our society’s debate over marriage—a debate that can seem in need of our clumsy “help” only to a member of this institution.  As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. 

Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule

ourselves.  Since DOMA’s passage, citizens on all sides of the question have seen victories and they have seen defeats. There have been plebiscites, legislation, persuasion, and loud voices—in other words, democracy. Victories in one place for some, see North Carolina Const., Amdt. 1 (providing that “[m]arriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State”) (approved by a popular vote, 61% to 39% on May 8, 2012), are offset by victories in other places for others, see Maryland Question 6 (establishing “that Maryland’s civil marriage laws allow gay and lesbian couples to obtain a civil marriage license”) (approved by a popular vote, 52% to 48%, on November 6, 2012). Even in a single State, the question has come out differently on different occasions. Compare Maine Question 1 (permitting “the State of Maine to issue marriage licenses to same-sex couples”) (approved by a popular vote, 53% to 47%, on November 6, 2012) with Maine Question 1 (rejecting “the new law that lets same-sex couples marry”) (approved by a popular vote, 53% to 47%, on November 3, 2009).  In the majority’s telling, this story is black-and-white:  Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution.

We might have let the People decide.  But that the majority will not do. Some will rejoice in today’s decision, and some will despair at it; that is the nature of a controversy that matters so much to so many.  But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better.   I dissent.