THE BLOG
06/28/2013 01:06 pm ET Updated Feb 02, 2016

Alito's Dissent: The Problem Began With 'The Idea That Romantic Love Is a Prerequisite to Marriage'

There's been lots of discussion about Supreme Court Justice Antonin Scalia's off-the-rails DOMA dissent, but if you really want a peek into the mind of someone living a couple of centuries in the past -- and using pseudo-academic rationales rather than pure emotion, like Scalia -- you've got to read Justice Samuel Alito's concurring dissent on DOMA.

In it we learn that the problem with the decline of marriage really began with "the ascendence of the idea that romantic love is a prerequisite to marriage."

This makes me think that a) Justice Alito purchased his wife at an auction, or from her parents in exchange for a plot of land and a couple of mules, or b) she kicked him out of the house the moment he walked in the door after she read his dissent.

Is this what conservatives really think, that the real problem is that we're marrying for love?

The family is an ancient and universal human institution. Family structure reflects the characteristics of a civilization, and changes in family structure and in the popular understanding of marriage and the family can have profound effects. Past changes in the understanding of marriage -- for example, the gradual ascendance of the idea that romantic love is a prerequisite to marriage -- have had far-reaching consequences.... We can expect something similar to take place if same-sex marriage becomes widely accepted. The long-term consequences of this change are not now known and are unlikely to be ascertainable for some time to come.

I can't imagine that Alito really believes we should go back to arranged marriages. But the man who stated during oral arguments on DOMA that gay unions are "newer than cellphones and the Internet" does appear to believe that the shift to "romantic love" was a dramatic change that caused such a jolt to the institution of marriage -- and that same-sex marriage could do the same -- that perhaps the government would have had ample reason to get involved.

"At present, no one -- including social scientists, philosophers, and historians -- can predict with any certainty what the long-term ramifications of widespread acceptance of same-sex marriage will be," Alito warns. And for that reason Alito believes the court should have upheld DOMA. The logical conclusion of this reasoning is that if the government could have enforced arranged marriage with a federal law, it should have, since no one could predict the outcome of these newfangled romantic-love marriages, which altered the institution of marriage forever.

Interestingly, Alito never mentions divorce in his dissent, though he does have a footnote that references a study titled "The Unexpected Legacy of Divorce: The 25 Year Landmark Study." It's odd that he footnotes a study about divorce to make the case against same-sex marriage, rather than making a reference to, and arguing against, no-fault divorce itself in the body of his dissent and pointing to it as a major reason for the decline of marriage, which Scalia at least hints at. (But perhaps that might not go over well with conservatives like thrice-married Newt Gingrich.)

The majority opinion indeed discusses divorce, pointing out that both marriage and divorce have always been the province of the states. Alito makes the case that DOMA was constitutional because the federal government has an interest in preserving the institution of marriage. Again, the logical conclusion is that he would be fine with a federal law banning divorce, even if, for whatever reason, he doesn't quite come out and say that.

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