The Incoherent, Dangerous Formulations of Justice Kennedy

Anthony Kennedy’s opinion for a five-justice Supreme Court majority announcing the hitherto undiscovered existence of a constitutional right to same-sex marriage rests on one fundamental thought. Although it takes Kennedy 28 pages, plus six pages of notes, to express it, a single line from a Bob Dylan song says it best: “The times they are a-changin’.”

Dylan sang that a half-century ago, but, like a man stuck in a time machine, Justice Kennedy remains committed to ensuring that the implications of the sexual revolution of the 1960s are realized to the full.

It is true, Kennedy acknowledges in Obergefell v. Hodges, that all through recorded history up to this time marriage has been understood as being a heterosexual arrangement, a man-woman sort of thing, oriented to begetting children. (Same-sex relationships have also existed all along, but they have not been regarded as marriages.) It is no less true that the framers of the Constitution and the drafters of the 14^th Amendment thought of marriage that way.

But, Kennedy instructs us, “the nature of injustice is that we may not always see it in our own times.” The people responsible for the Bill of Rights and the 14^th Amendment suffered from that disability, but at least they had the sense to leave us “a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

And now at last, the Justice reports, people have come to see what that meaning is. Or anyway he and his four liberal colleagues do. The five of them know what the authors of the Constitution and the 14^th Amendment didn’t know—that these two provisions contain an entitlement for men to marry men and women to marry women. Let that be the law of the land.

The Kennedy opinion in Obergefell, announced June 26, has been justly derided, but it’s worth dwelling on for the light its intellectual shoddiness sheds on the case for same-sex marriage as a whole.

Start with the writing. Considered simply as an exercise in English prose composition, Kennedy’s opinion is a mess. Its principal characteristic is a fondness for windy formulations of a pseudo-profound sort (“the annals of history reveal the transcendent importance of marriage,” “choices about marriage shape an individual’s destiny,” “since the dawn of history, marriage has transformed strangers into relatives” and so on).

Antonin Scalia, wielder of the court’s most pointed pen, offers a devastating critique of writing like this: “The opinion is couched in a style that is as pretentious as its content is egotistic…often profoundly incoherent.” This is language that in seeking to impress succeeds only in dismaying.

Still, if the Kennedy opinion were nothing more than a particularly execrable piece of bad writing, one might be moved in charity to pass it over in silence. Unfortunately, its defects go much deeper than that. For one thing, the opinion is deeply troubling to people worried about the tendency of the Supreme Court to discover new constitutional rights and then usurp the role of the legislative branch by imposing these on the nation in the form of new social policy.

Chief Justice Roberts makes this point in his dissent. Calling the majority’s decision “an act of will, not legal judgment” with “no basis in the Constitution or this court’s precedent,” he asks: “If an unvarying social institution enduring over all of recorded history cannot inhibit judicial policymaking, what can?”

“This approach is dangerous for the rule of law,” Roberts adds. And, one might note, for a great deal else, including the religious liberty of people who dissent on faith-based grounds.

Anticipating that objection to his handiwork, Kennedy offers assurances to such people in a single paragraph near the end of his 28 pages of text. It goes like this:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate. The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

The condescension of this is astonishing. Does Kennedy imagine he is being magnanimous in allowing free speech under the First Amendment to those who disagree with him?

And what about the rights of providers of wedding services like florists, photographers, and bakers of wedding cakes who already have been subjected to pressure to service same-sex weddings despite their religious objections, and have sometimes penalized severely for not doing so? What about Catholic Charities in the District of Columbia and several states, forced out of adoption and foster care work because they could not conscientiously place children with same-sex couples? What about church-related schools whose tax-exempt status most likely will come under attack unless they teach approval of same-sex marriage?

Telling all these, as Kennedy does, that they “may continue to advocate” is cold comfort. “The majority’s decision threatens the religious liberty our nation has long sought to protect,” says Justice Thomas in his dissent. And Justice Alito adds this grim thought: “Those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such.”

There is no serious doubt that a struggle over religious liberty lies ahead. Writing on the op-ed page of The Washington Post on the morning of Obergefell, the assistant legal director of the American Civil Liberties Union, Louise Melling, sketched its terms. Declaring that her activist organization no longer supports the principal federal religious liberty law, the Religious Freedom Restoration Act, Melling called on Congress to amend RFRA “so that it cannot be used as a defense for discrimination.” In the ACLU’s book, “discrimination” means religiously based refusal to cooperate with gay rights claims in employment, housing, and perhaps even speech.

But Kennedy is oblivious to all that in his determination that his vision of marriage shall prevail. It’s a vision in which the importance of marriage as a social institution for the begetting and nurturing of children disappears almost entirely, replaced by an individualistic image according to which what’s really important about a marriage is the partners’ “fulfillment for themselves.”

Ironically, if there is consolation to be found in the wake of Kennedy’s Obergefell opinion, it resides in the thought that the Bob Dylan anthem of the 1960s might still hold true, albeit with consequences hugely different in the future from the consequences back then.

The slow one now
Will later be fast
As the present now
Will later be past.
The order is rapidly fadin’
And the first one now will later be last
For the times they are a-changin’.

Changin’ for the better, one hopes.