Justice Kennedy’s troubling incoherence
December 10, 2015 (ThePublicDiscourse) -- Obergefell v. Hodges was decided by five robed justices, but only one man both wrote and signed his name to the majority opinion. The four concurring justices chose to concur silently, adding nothing more than their signatures. This case is the brainchild of one man. That man and his state of mind—indeed, his character—matter.
Recently, Justice Anthony Kennedy dismissed conscientious objectors to Obergefell, such as Kim Davis, by pointing out that very few Christian judges resigned when the Nazis imposed the Nuremberg Laws on Germany. Leaving aside how offensive it is to compare gay marriage supporters to Nazis, Justice Kennedy’s statements point to a troubling lack of coherence in the man’s thinking. He disregards the entire ethos of Henry David Thoreau’s Civil Disobedience.
In Kennedy’s rhetorical world, Henry David Thoreau is impossible. Yet same-sex marriage, and indeed Obergefell, would be impossible without Henry David Thoreau. Without Thoreau, there would have been no Martin Luther King Jr. (Thoreau’s influence on King is well documented), no nonviolent civil rights movement, no Stonewall, and no crescendo of the Supreme Court redefining marriage complete with a fluorescent rainbow illuminating the White House.
Thoreau himself wasn’t wild about marriage, having resisted enormous pressure from his friends to marry. He was wild about chastity, which he called in Walden “the flowering of man; and what are called Genius, Heroism, Holiness, and the like, are but various fruits which succeed it.” You can’t understand Thoreau if you don’t understand the importance of purity, both spiritual and carnal. He didn’t seek equality or freedom for their own sakes, but he did seek goodness and cleanliness. Same-sex marriage would have repelled him both because the movement for it is fixated on an institution (marriage) he distrusted and because it is based on human beings submitting to a carnal mandate rather than seeking a “channel of purity.”
Thoreau advocated “civil disobedience,” a model for social change based on conscientious objection. Hygienic or material conditions did not figure as prominently in his postulations as did the internal purity of knowing that one is not feeding a polluted and immoral system. “Must the citizen ever for a moment,” asks Thoreau, “resign his conscience to the legislator? . . . It is not desirable to cultivate a respect for the law, so much as for the right.” Complicity with repugnant systems is the highest violation of conscience, for Thoreau later says:
How does it become a man to behave toward this American government to-day? I answer that he cannot without disgrace be associated with it. I cannot for an instant recognize that political organization as my government which is the slave’s government also.
Disassociation does not imply evasion. The point of “civil disobedience” is that you do not flee from but rather engage the system in order to block its dehumanizing status quo. As Thoreau states, “when the friction comes to have its machine, and oppression and robbery are organized, I say, let us not have such a machine any longer.” One might dismiss him as naïve, but the fact that the few judges who resigned in Nazi Germany did nothing to stop the Holocaust actually affirms Thoreau’s point about the “machine” and its “oppression and robbery.” If you don’t disobey the machine, you enable it, and it continues. Resigning and leaving the machine to its own devices is the complete opposite of civil disobedience; it’s wimpy capitulation that stops us from saving those who are being mistreated.
Justice Kennedy believes that, even in Nazi Germany, the way to honor one’s conscience is to abide by the rules set down by the system that violates one’s conscience. In his view, you ought to quit, because the system tells you that you can never change the system; instead, you ought to vanish and shy away from confronting evil.
Yet this is the same man who wrote, in his Obergefell decision, that gay and lesbian couples had a Fourteenth Amendment right not only to marriage licenses but also to loving and obedient children, perhaps now complete with doctored birth certificates. In his view, same-sex couples deserve custody of other people’s offspring, because the system that denies gays these things—which some might call “the natural world”—is unfair and must be changed. When it came to same-sex marriage and parenting, Justice Kennedy didn’t tell gays and lesbians to quit, go home, and leave the system alone. Instead, he bowed to the demands of the gay rights lobby, which grew out of the Thoreau-inspired civil disobedience of the 1960s. There is some severe cognitive dissonance here.
Why Didn’t Justice Kennedy Listen to the Children of Gays and Lesbians?
The evidence Justice Kennedy cited in Obergefell also raises questions about whether he fully understood and impartially considered the evidence before him in that case. Although it was handed down in June 2015, everything in Justice Kennedy’s Obergefell opinion refers to the type of evidence that had been submitted in previous federal court cases. The information the opinion draws on in assessing the impact of same-sex marriage on children seems frozen in time, as if Justice Kennedy were stuck in January 2013, back when briefs were submitted in the Windsor case.
In January 2013, the only widely known research that countered the “consensus” on same-sex parenting was the embattled article by Mark Regnerusin Social Science Research from July 2012. At that time, moreover, there were almost no dissenting children of gays who had spoken out against gay parenting, as I have. Back in 2013, we weren’t yet organized enough to submit briefs to the Supreme Court.
But in 2015, B.N. Klein, Katy Faust, Heather Barwick, Denise Shick, Dawn Stefanowicz, and I—all children of LGBT parents—did submit amicus briefs. Given the centrality of the supposed interests of children raised by gay couples in Justice Kennedy’s decision, the new information about same-sex parenting, which emerged between the 2013 Windsor and 2015 Obergefell decisions, was absolutely crucial. Since race and gender are often brought up when the Fourteenth Amendment is discussed, it is noteworthy that the six authors of these briefs included five women and a non-heterosexual male of color. Hence, we were speaking to concerns about the Fourteenth Amendment as members of protected classes. Yet there is no sign at all that Justice Kennedy or the other justices read our briefs.
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This new body of evidence, which includes not only our personal testimonies but also large-scale sociological data published in peer-reviewed journals, casts serious doubt on the supposedly unquestioned consensus from professional researchers about the benign nature of same-sex parenting. Between 2013 and 2015, new studies were published by Douglas Allen of Simon Frasier University and D. Paul Sullins of Catholic University, which drew from broad population samples and debunked the “no harm” consensus of same-sex parenting. Moreover, in Jephthah’s Daughters: Innocent Casualties in the War for Family “Equality” B.N. Klein and I provided 550 endnotes and documented seventy confirmed cases of same-sex parenting in which there were clear losses and harms done to children. That book was published in February 2015, and cited in the March 27, 2015, brief.
Conflicting Fourteenth Amendment Rights
At least one of the briefs submitted by children of gays raised the problem of two colliding imperatives culled from the Fourteenth Amendment. In order to give gay couples equal rights to children, a specific class of children will be targeted. They will be deprived of equal rights to their mother and their father, and by extension to their heritage. B.N. Klein and I raised this problem in our brief, but no one has yet provided a solution to this extremely important dilemma.
There is a much stronger historical basis behind the notion of a Fourteenth Amendment right of children to their mother and their father (the work of David Upham is useful here), than there is behind the notion of the Fourteenth Amendment’s guaranteeing children to people who want them but who do not want to build homes that include the necessary male-female diversity to conceive children.
Not everyone gets married, but everyone has a mother and a father. Adults who marry the same sex do so as capable, sound-minded adults, while children who are placed and kept in same-sex guardianship have no choice or comprehension of what has been done to them. Adults who marry the same sex can get divorced, while children who are issued doctored birth certificates can never go back and relive their childhood with a mother and a father. Adults who form same-sex households willfully segregate themselves from the other sex through freedom of association, while children of gay couples are forced to live in a state of sexual segregation. The Fourteenth Amendment right to a mother and a father should take precedence over the less compelling Fourteenth Amendment right to marry and have children.
The fact that the conflict between the rights of same-sex couples and the children of gays as classes was not even addressed in Justice Kennedy’s opinion demands further scrutiny. Why and how did the legal process that is supposed to protect classes like the children of gays fail to give them the “redress of grievances,” “equal protection,” and “due process” they deserve?
Gay marriage was always a personal issue for the people demanding it, which is why debates about gay marriage became so exceptionally emotional. Justice Kennedy’s personal shortcomings and the failure of the five majority justices to honor their duties and review relevant new evidence matter. I hope attention will be paid to the latter.
Reprinted with permission from The Witherspoon Institute.