Old Man Runner wrote:
Can't wait to read the dissenting opinion on how they justify continuing discrimination.
You are assuming your conclusion. The entire puzzle of equal protection is how you distinguish between laws which draw permissible distinctions and laws which draw impermissible distinctions.
It may be fine for the general public to have a common sense feeling about what's fair and what's not, but intuition is not the basis of law.
One hundred years ago homosexuality was almost universally considered to be immoral conduct. Now more people think that it is a morally neutral, inherent trait. Unquestionably the government has the power to legislate on the basis of social perceptions of morality. By striking DOMA, the Court has implicitly made a decision about what homosexuality really is. Regardless of whether this was the right decision, it's certainly defensible and rational to argue that the task of redefining our political morality is for the people themselves, rather than for judges.
Analogies to black civil rights do not necessarily undercut this point about the role of the courts. The Civil War Amendments to the Constitution were passed by the people as a specific authorization for courts to interfere with the democratic processes of states in order to protect racial minorities. Courts enforcing the 14th Amendment to protect racial minorities derive their authority, ultimately, from the people who made it law.
I'm not trying to make a full defense of the dissent here, as I'm aware that there are many counterpoints to be made (as well as counter-counters, and counter-counter-counters, etc.). My point is much more limited: It's terribly ignorant to simply call DOMA "discrimination" and believe that should settle the matter as an issue of constitutional law.
