No, Justice Kennedy Didn’t Just Call a Bunch of People Bigots
Or: “Everyone’s a Little Irrational Sometimes.”
Chief Justice Roberts’ dissent is in some ways the most interesting of the opinions in U.S. v Windsor. He didn’t believe the court had jurisdiction — a complicated question in its own right — but he did say something quite important (and quite right as far as it goes, in fact) about the majority’s holding:
That the Federal Government treated this fundamental question [i.e., the gender of marriage partners] differently than it treated variations over consanguinity or minimum age is hardly surprising—and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snippets of legislative history and the banal title of the Act to which the majority points suffice to make such a showing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry.
Nor would I! And yet I think Kennedy’s opinion is basically correct. The truth is that, were we to try to infer motives, considering the minds of the individuals who enacted DOMA as 428 utterly impenetrable black boxes, we might infer bigotry, but we wouldn’t have to.
In some cases, I feel very justified when I infer bigotry. Strom Thurmond, Trent Lott, and Jesse Helms all voted for DOMA, after all. These individuals all but certainly did have a bare desire to harm gay people. Bigots, each one of them, on multiple accounts.
Here’s the tricky and possibly tendentious part: By the rule of means-ends fitness, they were acting rationally. They wanted to achieve the end of hurting gay people, and DOMA was a fit means to that end. Strictly speaking, that’s rational, even if the free-floating desire to do harm is evil. Which it is.
We can’t likewise claim rationality for some of the others. Let’s remember that politicians do sometimes act irrationally — I hope that’s not too controversial — and let’s also recall just what the word “irrational” means. I think this says it pretty clearly:
an action or opinion given through inadequate use of reason, emotional distress, or cognitive deficiency.
By this definition, we are all sometimes irrational. We all experience emotional distress and cognitive deficiency. We all sometimes reason inadequately.
Politicians are by no means immune. Sure, they look like really with-it people, but they aren’t. If anything, they face a particularly great temptation to irrationality, namely the fear of not winning re-election. Definitely a source of emotional distress! Venal as all hell, that, but it’s recognizably human.
When politicians substitute the rule of political expediency for the rule of doing what’s right, they are using a rule that ill fits the situation. That’s what irrationality is. We have no particular reason to think that the rule of political expediency should fit, not ever. But that rule was certainly in play when DOMA passed. It’s that or think that Bill Clinton was a bigot, which I don’t believe. All I need to believe here is that he was a few days out from an election, which was undoubtedly the case when he signed DOMA. The same was true of most other individuals who voted for it.