Obergefell is so awful that it makes Dred Scott look like a piece of lawyerly precision
July 6, 2015 (ThePublicDiscourse) -- When the blow finally fell, the Supreme Court’s ruling in Obergefell v. Hodges—holding 5-4 that every state in the Union must license same-sex marriages—seemed somehow less crushing in its impact, less hurtful and wounding, than one might have expected from a decision that is so thoroughly a defeat for the truth about marriage and the truth about the Constitution.
Make no mistake, the harms from the Court’s appallingly illegitimate decision are many, and gravely serious. But the good news for a cockeyed optimist like me is that Justice Anthony Kennedy’s opinion is so incompetent, so gossamer-thin as an exercise in legal or constitutional reasoning, so unpersuasive even in political terms, that it renews my zest for carrying on the battle of persuading my fellow citizens and turning the country around on this issue.
I should have known he would do this for us, as well as to us. For Kennedy began to travel this road nearly twenty years ago in Romer v. Evans (1996), in which a 6-3 Court denied to the people of Colorado the authority to amend their state constitution to prevent their elected state and local legislators from adding “sexual orientation” to the list of “identities” on the grounds of which discrimination by public and private actors alike is forbidden.
Is Anyone "Demeaning" Others' "Dignity"?
Yet at least in Romer, the word “dignity” had not yet appeared in Kennedy’s reasoning. In Lawrence v. Texas (2003), which overturned state laws that criminalized homosexual sodomy, Kennedy turned away from the equal protection clause and to the textually and historically ungrounded jurisprudence of “substantive due process.” This meant, in Kennedy’s hands, the judicial protection of a free-ranging, judicially defined notion of “liberty” invoked to overturn any conduct-regulating statute that trenched on the “dignity” of persons whose wishes and desires tugged at the judges’ heartstrings.
In Romer, at least, Justice Kennedy had labored to produce something that resembled a competent account of the equal protection clause—though his attempt failed. But Lawrence was something else. Lawrence was a moment of real self-liberation for Kennedy. That can be seen in his quotation of what were probably his own words from the joint opinion he co-authored with Justices O’Connor and Souter in Planned Parenthood v. Casey: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” This “mystery passage” was already in 2003, and remains, the most widely lampooned bit of pseudo-reasoning of the last half century, but Kennedy sensed the cultural and political power that it represented, and in Lawrence he set it on course to colonize our constitutional law entirely. His opinion was also liberally salted with references to “dignity” (three times, including another line quoted from Casey), and to the idea that laws resting on negative judgments of homosexual conduct “demean” those who engage in it (four times).
United States v. Windsor, the Defense of Marriage Act case from two years ago, gave us more of Kennedy’s free-floating jurisprudence of “dignity” (ten mentions including “indignity”), condemning laws that “demean” (three mentions). Obergefell rests explicitly on this fragile, groundless rationale, with Kennedy mentioning the connection of marriage to “dignity” nine times, while three times saying that it “demeans” same-sex couples when a state limits marriage to one man and one woman, and twice invoking the matter of “identity.”
But there is something else quite new in Obergefell. Kennedy, somewhat defensively, mentions twice that defenders of conjugal marriage might believe redefining the institution to include same-sex couples “demeans” marriage itself. Since no one opposed to same-sex marriage actually speaks this way, this is a curious characterization, but perhaps an important one. In Kennedy’s mind, the Constitution has been converted into a great Dignity Document. The role of the Supreme Court is to adjudicate whose version of Dignity it embodies, which can be decided by pondering who is made to feel worse by having his strongest convictions “demeaned.” Victory will go to the one who can appeal successfully to strong feelings about his “identity.” As Chief Justice Roberts said in dissent, “The majority’s driving themes are that marriage is desirable and petitioners desire it.”
A Constitutional Crisis
Confronted by such a string of sentiments masquerading as constitutional principles, why then should I feel heartened by the new phase of the struggle into which the Obergefell ruling has just pitched us? The reason is that Kennedy is so terribly bad at his chosen profession of judge that he has now unmasked himself, and his four silent colleagues who joined his opinion for the Court, as imperial rulers with no regard for the Constitution, for the forms of reasoning that give the law its real vitality, or for the rightful authority of the people to govern themselves within the bounds of a Constitution they understand and respect.
Moreover, while noting all the manifold ways in which the marriage debate has been played out over the last two decades—just as he was attempting to shut that debate down—Kennedy evinced no understanding of what the arguments about marriage really are, not even grasping the arguments on the side he favored. In so doing, he showed himself to be, if not one of the least intellectually honest persons ever to come to that debate, then one of the least well-informed. His opinion is an act of the most breathtaking argumentative carelessness in the history of the Supreme Court. Roe v. Wade, Lochner v. New York, and Dred Scott v. Sandford—all rightly invoked by the dissenters in Obergefell as the true models for Kennedy’s reasoning—are closely reasoned works of lawyerly precision by comparison.
As a legal opinion, Obergefell is an utter failure. What the late John Hart Ely, who was politically in favor of abortion, said of Roe v. Wade, we can say of Obergefell: “It is bad because it is bad constitutional law, or rather because it is not constitutional law and gives almost no sense of an obligation to try to be.” But Obergefell is also embarrassingly bad as a contribution to the political and social debate on marriage. From this I take heart that the battle can be rejoined, with the making of better arguments—each side offering its best against the other’s best—in a struggle that will continue for years to come.
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But wait. Isn’t the debate over? Isn’t that what a Supreme Court decision on the Constitution means? Well, frankly, no. The movement for rescuing and restoring marriage in our country will not be made to vanish by so transparently political a holding of five justices of the Supreme Court. The movement for defending the sanctity of life in our law, forty-two years after Roe v. Wade, waxes rather than wanes in strength. As the pro-life movement was joined, so the marriage movement will be joined, by defenders of the authentic Constitution so blithely traduced by the Court’s majority. The Roe decision has often made pro-life converts out of people who actually read it—I know, because I was one of them—and the Obergefell ruling, in time, will do similar work in adding strength to the ranks of marriage’s defenders.
A constitutional ruling so shoddily reasoned, so completely and, one may say, easily dismantled by the four justices who dissent from it, must paper over a cause that cannot ultimately win in an open democratic debate, and that therefore seeks the shelter of powerful friends in the judiciary. This is just what many young people will come to see for themselves simply by reading the decision, just as many have done by reading Roe. The twin discoveries, that a great constitutional wrong has been committed to give cover to a great moral wrong, will come together.
We may take heart, then, from Justice Alito’s observation that “even enthusiastic supporters of same-sex marriage should worry about the scope of the power that today’s majority claims.” Indeed they should, for the debate is not over; it has only entered a new phase. That phase will necessarily include some sober deliberations regarding what can be done about a Supreme Court with (at least) five members who believe that they can rewrite the Constitution at will in order to transform fundamental institutions of our society. For Alito’s very next sentence is, “Today’s decision shows that decades of attempts to restrain this Court’s abuse of authority have failed.” Indeed, they have, and so it is back to the drawing board. When even the chief justice complains of “the majority’s extravagant conception of judicial supremacy,” it is time to do some hard thinking about meaningful institutional reform of the federal judiciary.
In the Meantime
While we prepare for hard work on many fronts in the battles for marriage and for the Constitution, we should recognize and immediately try to mitigate the great harm the Court has done. Despite Kennedy’s pat denials, marriage has been grievously wounded as an institution, and we must do what we can to bind up its wounds, in our own families, communities, and churches. After all, every future generation is at stake. We must never tire of saying: every child deserves a mother and a father—preferably his or her own biological parents. That, as the dissenting justices recognized, is what marriage has always been about, in every age and culture, and it is why marriage has always been understood as the union of a man and a woman.
And we must do all that we can to institute safeguards for religious freedom in our country, which will now come under attack as never before. It was strangely gratifying to see Chief Justice Roberts and Justice Thomas, in their dissents, give this matter their lengthy and considered attention. Thomas foresees “potentially ruinous consequences for religious liberty” in this invention of a new “right” of same-sex marriage, and Roberts noted how telling was the way in which Kennedy shrugged off such potentials:
The majority graciously suggests that religious believers may continue to “advocate” and “teach” their views of marriage. . . . The First Amendment guarantees, however, the freedom to “exercise” religion. Ominously, that is not a word the majority uses.
The protection of religious freedom may rapidly become our most urgent legislative business, both in Congress and in state legislatures. But win or lose in legislative assemblies, the faithful and their pastoral leaders in the many religious communities devoted to the truth about marriage must prayerfully muster the courage to act, and to live as their faith informs their consciences, as well as to “advocate” and “teach.” As Alito notes, “those who are determined to stamp out every vestige of dissent” on the marriage question will be ready to exploit the Court’s decision. Look at your social media feeds: That is already happening.
In our response to our counterparts in this great constitutional, political, and moral debate that now begins anew, we can start by preaching and practicing a truer, fuller understanding of dignity, in our families and churches, than the one about which Kennedy so vainly prattles. And we can fix our eyes on the prize of restoring, through real democratic debate and persuasion, the great goods of constitutional self-government and justice to individuals and families.
Thank you, Justice Kennedy, for giving us this opportunity. I know you didn’t mean it, but thank you nonetheless.
Reprinted with permission from The Witherspoon Institute.
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