The majority opinion in the DOMA case, on the other hand, is judicial activism in the classic sense. Unlike the VRA case, the majority opinion articulates no recognized Constitutional basis for finding DOMA unconstitutional and invalidating a legislative enactment that was overwhelmingly passed by Congress. While referencing equal protection, due process and federalism, Kennedy's opinion does not rely on the constitutional boundaries or established precedent of these constitutional principles. Rather, the majority nullify properly enacted legislation by saying it is mean and the enacting Congress was trying to do bad things.
Under the recognized constitutional law, homosexuality is not a "protected class" recognized under the 5th or 14th Amendments for special protection (such as race or gender) and, as such, only a "rational basis" is necessary to uphold it. Rational basis is the broadest of constitutional tests. All congress need say is something along the lines of "in order to preserve uniformity in the application of federal benefits and penalties flowing from the legal state of marriage, Congress defines marriage to be ...." Ta Daaa. Rational basis.
The majority opinion ignores the rational basis test and instead concludes "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others,the federal statute is in violation of the Fifth Amendment."
Without articulating the 5th Amendment standards set forth in Constitutional law or demonstrating how it violates those standards, the majority simply does not like it and says, therefore, it's unconstitutional. Thus, creating sloppy, popular law that will encourage further litigation and legislation.
The real solution was to have Congress invalidate DOMA.
http://www.supremecourt.gov/opinions...2-307_g2bh.pdf