Justice Kennedy and gay rights

As I begin typing this, the Supreme Court is in the middle of oral argument in Obergefell v. Hodges, the gay marriage case. You can follow the progress of the argument at Scotusblog.

Personally, I am not opposed to changing the definition of marriage to encompass same-sex unions. I consider this a low-risk accommodation to the reasonable desires of a large segment of our fellow Americans.

But a change of this magnitude is not without risk — some of it foreseeable, some not — and the decision to assume the risk should be made by voters, not judges. I see no respectable argument for the proposition that it’s unconstitutional for states to adhere to a definition of marriage that has prevailed throughout recorded history, i.e., one that precludes same-sex unions. That the such an argument seems seems poised to carry the day at the Supreme Court tells me how wrongheaded constitutional analysis has become and how big-headed the Court is.

After Obergefell v. Hodges, constitutional analysis is likely to become more misguided still. That’s because Justice Anthony Kennedy is expected to cast the vote needed to render unconstitutional state laws that adhere to the (until recently) universal concept of marriage as between a man and a woman.

Yesterday, the Washington Post wrote a piece about Kennedy’s views on gay rights. It quoted several of his statements in landmark cases where he found in favor of the gay cause.

The quote that caught my eye was this one: “[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” Kennedy delivered the quote in explaining the decision in Lawrence v. Kansas, which struck down a Texas ban on homosexual sex.

I should note that, strictly speaking, this quote doesn’t apply to the ban on same-sex marriage. Unlike the Texas law at issue in Lawrence, the ban at issue now doesn’t forbid or require individual conduct. The ban can be viewed as unfair, but it would be quite a stretch to find it “oppressive.”

Nonetheless, the Kennedy quotation captures, I think the spirit that likely will cause him to find bans on same-sex marriage unconstitutional. Accordingly, it deserves scrutiny.

In context, Kennedy was saying that the framers of the Constitution did not know, and could not be expected to know, all possible components of liberty. Therefore, they could not have been expected to include or envisage gay sex as part of the liberty they were guaranteeing.

But the contemporary residents of states like Texas are not limited by the prejudices of the 18th Century. They are the part of the “later generations.”

If “later generations” become convinced that, as a matter of protecting liberty or simply as a matter of accommodating one’s fellow Americans, states should stop banning same-sex marriage, the ban will cease to exist. The process seems to be well underway.

Kennedy’s quotation doesn’t explain why judges should accelerate the democratic process. But it may provide a psychological explanation for why Kennedy wants to do so.

Kennedy’s statement reveals, I suspect, his concern with how today’s laws will be viewed tomorrow and, more to the point, how his opinions will be viewed. Such a concern is problematic. First, what reason is there to believe that judges are capable of figuring this out? Second, and more fundamentally, why is this a legitimate function of the judge?

I understand why judges would try to discern how a law (or constitutional provision) was viewed in the past, i.e., by those who enacted it. To an “originalist,” this is an essential function of the judge. But why is it relevant to try to discern how a law will be regarded tomorrow?

The left has long argued for a “living Constitution.” Kennedy’s approach seems to push this one step further. Call it the “soon to be living, I think, Constitution.”

Kennedy’s statement, in sum, can be viewed as giving away his concern for how history will regard him. The concern is a normal one for Supreme Court Justices to have. But it’s not a legitimate basis on which to decide cases.

The prospect that the age-old definition of marriage will be toppled based, in effect, on the opinion of one un-elected individual who seems intent on being a step ahead of history (as he projects it) suggests to me that, without any real consent by the polity, our system has evolved into farce if not tragedy.


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