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!!

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