My Response to Justice Kennedy’s SSM Opinion


The Supreme Court rendered its decision in a document numbering 103 pages. There are about 30 pages laying out the majority opinion written by Justice Kennedy and 38 pages for the Dissenting opinion by Justice Roberts and then dissenting opinions by Justices Thomas, Scalia and Alito.

Response to Justice Kennedy

Kennedy justifies the Court’s action in this decision in these words:

“There may be an initial inclination to await further legislation, litigation, and debate, but referenda, legislative debates, and grassroots campaigns; studies and other writings; and extensive litigation in state and federal courts have led to an enhanced understanding of the issue. While the Constitution contemplates that democracy is the appropriate process for change, individuals who are harmed need not await legislative action before asserting a fundamental right.”

In effect, he said the Court has waited long enough, and it must step in because “a fundamental right” is at risk. Of course, this is just the thing to be proven, that SSM is a fundamental right. Certainly tradition and history (which the Court usually takes so seriously) do not give any support to SSM as a fundamental right. It can be asserted. It remains to be proven.

I believe that Kennedy’s essential position is that this action can stop the suffering of SS couples and give them dignity. It may or may not. But the argument appears to be purely psychological. The Court can stop suffering and ought to do so, even if it has to assert a “fundamental right” without rational defense of it, either in law, history or rational argument. He does root this in recent discoveries: “Only in more recent years have psychiatrists and others recognized that sexual orientation is both a normal expression of human sexuality and immutable.” Of course, both of the words “normal” and “immutable” are controversial assertions.

Additionally, these comments follow: “The identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution. That responsibility, however, ‘has not been reduced to any formula.’ Poe v. Ullman, 367 U. S. 497, 542 (1961) (Harlan, J., dissenting). Rather, it requires courts to exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect.” Also “When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” To which I respond, what new insight? What make it an insight?

In reading Justice Kennedy’s opinion, I feel as if I am reading a copy of Psychology Today. This sentence is typical. “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.” Other freedoms? Spirituality? I think the court has stepped into the counseling office and forgotten that its responsibility is Law, not making sure each person finds fulfillment, however the current cultural trends define it. No matter what, these things would at least be submitted to a deliberative body rather than the Court’s latest reading of Psychology Today. Justice Thomas makes much of the Court’s inability to bestow dignity anyway. This is not the power of the state.

Kennedy writes, “A second principle in this Court’s jurisprudence is that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” The immediate reply, as so many have pointed out, is where did Kennedy get “two-person union?” He knows that this is exactly what will be in question, and yet he simply ignores it. The reason he does, I must suppose, is that the only place he can go to defend it is the very place he just left to assert SSM, and that is history and tradition.

Kennedy writes, “Yet by virtue of their exclusion from that institution [marriage], same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives.” Yes, many living arrangements are denied the constellation of benefits that the States link to marriage. The thing that must be demonstrated is that same-sex coupling can be defined as marriage. This is the very thing left undone.

Again, Kennedy writes, “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” Kennedy frames this is such a way that opposition to SSM is a personal peccadillo. How about the entire of human history? How about the entirety of the legal tradition? Opposition to SSM is not a mere “decent and honorable religious or philosophical premise.” I can almost feel him patting my head and saying, “Now, now, decent and honorable religious person…”

The continued use of the word “unequal” by Kennedy is baiting, in my opinion. No one is for inequality. But the word in actual use must be defined and not merely said. SS couples are not being treated unequally with respect to marriage, for marriage is one man and one woman. My response to Kennedy does not include a long defense of marriage traditionally conceived. I will do so soon, but everyone must admit that the traditional definition of marriage has an adequate history of rational defense (and not only religious) and historical validation as a definition that actually suits the human condition. The amount of “chronological snobbery” one must assume to in effect say that everybody in all times and in all situations are simply wrong is a stunning thing.

I am responding only to Kennedy and then again only some of what Kennedy has asserted. I am not giving my defense of the traditional view of marriage. Kennedy is in some ways easy to respond to and in some ways most difficult. He is easy to respond to for his fallacies of reasoning are huge. He simply assumes what has to be proven. And yet he is difficult to respond to in that he has no argument to which one can respond. This is deeply disappointing in a Supreme Court Justice. While I am sure his erudition is far beyond my own, it seems to me that he chooses not to employ it.

I respectfully submit some of these thoughts to you without ad hominem attacks. Justice Kennedy is in the position he is in because he is well thought of by men and women on opposite sides of many of the issues he was chosen to face on the Court. We needed more from him in this case, no matter his ultimate decision. Those who oppose his conclusions at least needed to be able to rest assured that he had looked the intellectual challenges square in the eye and given us evidence he has fairly responded. I do not have that peace.

I am going out to buy my latest copy of Psychology Today so I can be ready for the next Supreme Court decision!!

The Ending of “1984” and Legalization of SSM

John Piper tweeted out “State school. There is now no legal way for your children to be taught any normal view of human sexuality.” Very sad. The children are put on the front lines in this clash. Many, many parents are not going to do it – they will be the great withdrawal of salt and light from public institutions leading to increase of public moral confusion as to what the good even is. Children will be baptized into runaway sexuality as those with aberrant sexual agendas rush into the school system. There is now no legal way to build fences in our school systems.

This is not going to be limited to SSM. Boston area schools demonstrate this. The horror stories are already out there. The response of the State to the increase of religious schooling and homeschooling will be cool, at best, and eventually it is likely those who choose this way will feel the outright animus of the State.

George Orwell in his 1984 comments that if you want to know what the future will look like, imagine a boot on the neck.

Check out Canada as churches struggle with managing their religious life with the legality of SSM. It’s not pretty.

All this struggle is far beyond the easy shibboleth that people should just be able to love one another. I think many good people simply want not to interfere with how someone else sees happiness. This is a good instinct of good people. So many people I admire and really like feel this way. But it is not and cannot be this simple. What flows out of this instinct does is not static. It moves, has direction and a certain speed. They will be surprised what comes in through the gate they wished to be opened.

“The SCOTUS Marriage Decision in Haiku” by Daneila Lapidous

Actually, this is pretty accurate.


– – – –

Roberts’ dissent:

I support you all
No, really, I do, but this
Isn’t our problem.

Alito’s dissent:

“Happiness is not
the point of marriage, fools. It’s
BABIES,” he whispered.

Thomas’ dissent:

“Liberty” – this word,
I do not think Locke means what
You think it means. Sigh.

Scalia’s dissent:

You’re not a poet,
Kennedy. And by the way,
Democracy’s dead.

Kennedy’s majority decision:

Hark! Love is love, and
love is love is love is love.
It is so ordered.

Natural Law Theory As a Way Forward In Our Culture Wars

Here is my posting on Facebook this morning. It is not, at this point, a fully argued proposal but a suggestion that needs to be unpacked. I offer it to you……..

I hope you can take a moment to read the entirety of this post. It is ground zero for some of my hope building in the midst of our cultural collapse.

In culture debates I think we Evangelical Protestants are in general burdened by a distinct disadvantage. We bring to the table a “the Bible says” argument. And in some situations this puts us behind the eight ball. It’s really hard to get someone else’s ear when, first, they don’t do Bible, and, second, when they intellectually can’t see how that has anything to do with them. Evangelicals preach and teach the Bible. This is who we are. It’s what we do. We are known for this, relied on for this. If you want to know what the Bible actually says, you will end up going to an Evangelical church, even if you don’t buy into the whole thing, because even a skeptic and unbeliever knows that a goodly number of churches don’t do Bible. It is all just metaphor to those churches, a Jefferson Bible, as it were, with all the supernatural stuff cut out.

But when it comes to political, cultural and legal persuasion, quoting Bible doesn’t do. And it’s then that Evangelicalism gets lost. What to do? Get ready for this. Ready? Really ready? Like, sitting down read? Do it like the Roman Catholics do it. In cultural moral debate they mine the riches of Natural Law Theory. This rises up out of the thought of Thomas Aquinas’ repurposing of Aristotle, the fourth century BCE Greek philosopher. (Have I lost you already? Are you already turning to 1 Corinthians 1:20-23: “Where is the philosopher? Where is the scholar? Where is the debater of this age? Hasn’t God made the world’s wisdom foolish? For since, in God’s wisdom, the world did not know God through wisdom, God was pleased to save those who believe through the foolishness of the message preached. For the Jews ask for signs and the Greeks seek wisdom, but we preach Christ crucified, a stumbling block to the Jews and foolishness to the Gentiles…” Also, vv. 27-30. “Instead, God has chosen what is foolish in the world to shame the wise, and God has chosen what is weak in the world to shame the strong. God has chosen what is insignificant and despised in the world—what is viewed as nothing—to bring to nothing what is viewed as something, so that no one[g] can boast in His presence. But it is from Him that you are in Christ Jesus, who became God-given wisdom for us—our righteousness, sanctification, and redemption, in order that, as it is written: The one who boasts must boast in the Lord.” (HCSB version)

Or, to put it the way early Church Father Tertullian put it, “What has Jerusalem to do with Athen?”

The simple idea of Natural Theology is that the moral order of the world is accessible to the mind apart from Divine (or Special) Revelation. Aristotle points us down that road. Aquinas takes that road and keeps us company on the way to penetrating and convincing evidence that we live in a moral world that is ordered. This moral order is real, it exists as a substance and is not a mere idea, and is accessible to rational enquiry. This is partly the route CS Lewis takes in “Mere Christianity” and the Apostle Paul takes in Athens. Here we have common ground with every person.

Natural Law Theory is the default position of our legal system. None of our laws begin with “the Bible says.” Our capacity to define moral codes through our mental faculties is assumed.

Protestants are uncomfortable with Natural Law Theory. As a group we usually demand chapter and verse. We believe that in our Fall from true righteousness through the sin of our first parents, not only was our character infected with the disease of sin but also our minds. We are blind. Therefore, we need the pure light of the Bible to make any final judgment on the moral good and the moral bad.

Well, yes. But yes in a qualified way. We may be swayed by our sinful natures to use our minds to avoid the good and change it into a license for evil. This is Apostle Paul’s point in Romans 1. We all intuitively know what this means. We do it all the time. We use our mental faculties to rationalize behavior. And yet… The image of God in us and on us is not eradicated, and Jesus has brought light and life into the world that lightens every man. John 1:9 Through Jesus we have not become subhuman and driven by instinct alone, though so many refuse to see the Light. We are able to identify the good and to affirm its worth.

I will be posting some on Natural Law Theory and giving some insights that will enable you to see the worth of using this means to do moral dialogue in a pluralistic culture. Like the Roman Catholic Church, I believe that rational enquiry will lead to the Good, the True and the Beautiful for both Christians and non-Christians alike. It can take us only so far, but it will be far enough keep society from chaos and settled darkness.

Robert George of Princeton University is our best example today of the use of Natural Law in moral argumentation. He is a committed and devout Roman Catholic and upholds its moral positions. He is one of the authors of “What Is Marriage?: Man and Woman: A Defense.” Without Bible verses or the appeal to transcendent authority he presents a reasoned case that marriage demands one man and one woman in order to actually be marriage. He has public debates on YouTube where you can view him at work.

This isn’t the only angle from which to approach the debate. It is one of the tools in our tool chest. But it is not often used, powerful though it is.

A Haiku on Justice Kennedy’s Majority Opinion Legalizing SSM

Kennedy’s majority opinion-

“Hark! Love is love, and
love is love is love is love.
It is so ordered.”
Daniela Lapidous

For a moment I thought the Beatles’ “All You Need is Love” was being sung by the five Justices in the majority. I will be writing more soon as I read the Justices’ opinions, but for now this seems the essence of the argument. If you love one another, then that’s enough to change the law. Even that is not defended. It is merely asserted. And it was so ordered.