ImageArgle-Bargle:  It’s a Technical Term

Congratulations are in order to Supreme Court Justice Antonin Scalia for correctly predicting that states would follow the June 2013 Supreme Court ruling that same-sex couples are entitled to equal treatment.

In June 2013, the Supreme Court struck down Section 3 of the federal Defense of Marriage Act (DOMA) and ruled the federal government must recognize same-sex marriages performed in states where it is legal.

Windsor v. United States was filed in November 2010 by the ACLU and the law firm Paul, Weiss, Rifkind, Wharton & Garrison on behalf of a surviving same-sex spouse, Edith Windsor, whose inheritance from her deceased spouse had been subject to federal taxation as if they were unmarried.

Edith Windsor and Thea Spyer, together 40 years.

Edith Windsor and Thea Spyer, together 40 years.

The New York district court ruled that Section 3 of DOMA was unconstitutional and ordered the requested tax refund be paid to Windsor and Windsor’s attorneys filed a petition with the Supreme Court in July 2012. In a 5–4 decision on June 26, 2013, the Court ruled Section 3 of DOMA to be unconstitutional, declaring it a “deprivation of the liberty of the person protected by the Fifth Amendment”.  Justice Kennedy said the law crossed the Fifth Amendment’s due process clause because it “singles out a class of persons deemed by a state entitled to recognition and protection to enhance their own liberty.”

By striking down Section 3 of DOMA, the Supreme Court affirmed that all couples who marry deserve equal legal respect and treatment and it would no longer deny legally married same-sex couples over 1,100 federal benefits and protections of marriage. It was a momentous victory for equality and the 16-year “gay exception” that caused pain, uncertainty, and financial harm to tens of thousands of families.Image

In what Business Insider called a “scathing dissent laden with sarcasm and condescension toward his fellow justices” Supreme Court Justice Antonin Scalia wrote that the court’s majority used legalistic “argle-bargle” as its rationale for striking down the key portion of the Defense of Marriage Act.

Puppet Scalia says “argle-bargle” in awesome video (

Since Windsor, federal judges have struck down laws barring same-sex marriages and supporters of same-sex marriage have been winning in state legislatures and state courts.

On February 14th, Virginia struck down its ban on same-sex marriage relying heavily on the Supreme Court’s decision. In a case that came before Ohio’s U.S. District Court, a ruling was made that Ohio must recognize on a death certificate a marriage that was performed in another state. A federal judge in Kentucky ordered the state to recognize same-sex marriages legally performed elsewhere. In Utah federal judge Robert J. Shelby struck down the state’s same-sex marriage ban arguing that the Fifth Amendment, ratified in 1791, and the Fourteenth Amendment, ratified in 1868, are the two provisions of the Constitution that have guaranteed the “existing right” of a man to marry another man or a woman to marry another woman.

Only days before the decision was handed down in Windsor v. United States, Scalia compared Windsor to Lawrence v. Texas, saying it was about “consensual sodomy.” Lawrence v. Texas was the Supreme Court’s landmark 2003 ruling which invalidated state anti-sodomy laws. It overturned its previous ruling on the same issue in the 1986 case Bowers v. Hardwick where the Court held that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment. Comparing a case about de-criminalizing private sexual acts to a case pertaining to marriage equality under the law shows contempt for the tens of thousands of families denied federal benefits under DOMA and calls Scalia’s reasoning into question.

Scalia’s argument at the beginning of his DOMA dissent reads:

“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 consequence 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.”

Wait just a minute – I call argle-bargle on Scalia! Because when it comes to the Voting Rights Act and the Affordable Care Act, Scalia doesn’t hesitate to “diminish” legislation approved by the elected representatives of self-governing Americans. But when it’s the Defense of Marriage Act, Scalia suddenly curbs his aggrandizing power…!

Edith Windsor: How She’ll Celebrate DOMA Defeat (

Windsor v United States


About Tracy Encizo

Social Justice and Human Rights grad student at ASU.
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1 Response to

  1. Wunderkynd says:

    This is great post! Very well written and informative. I also enjoyed your anti-Scalia perspective. I, personally, am very happy with the Court’s decision to overturn DOMA, and even happier that opinion’s, like Scalia’s, are now in the minority. Even though he claims to have a Originalist interpretation of the Constitution, he does seem to only use it when it is convenient – as you have pointed out. I’m really not sure how else the Equal Protection Clause could be construed in this case. “Equal protection of the laws” is pretty straight forward, to me. (I know it gets a lot messier than that, but, as far as marriage laws go, I don’t see how any reason to split hairs.) Thanks for sharing!

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