Justice Kennedy and the Same-Sex Marriage Ruling: Disappointed But Not Despairing

As many (most?) had expected the Supreme Court held today that homosexual marriage is some sort of fundamental right under the Due Process and  Fourteenth Amendment Equal Protection Clauses.  The case was decided by a narrow 5-4 majority, with—of course—Justice Anthony Kennedy writing the opinion and the other justices lining up predictably on either side.  Without having read the entire opinion, as I was on the road to Washington, DC, I cannot say too much yet, though I did hear from a myriad, it seems, of commentators on radio.  And I have the opinion in front of me now.  So I will take a quick stab at trying to discern what the case did and did not actually decide.  Obviously most Christians are disappointed in the outcome, but we also need to know why and why ought and ought not to despair.

The facts were straightforward.  The states in these consolidated cases each had prohibited homosexual marriage, and had been sued in Federal court on Due Process/Equal Protection grounds.  The summary of the holding is stated at the beginning of the opinion:

“Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State. “(Obergefell, Syllabus, 1)

Now we want to know what the reasoning of the court was.  Kennedy freely admits that the change in attitude regarding homosexual marriage has been very recent and that before that recent development, virtually no one, except for tiny minorities, accepted it.  Then Kennedy writes:

“(1) The fundamental liberties protected by the Fourteenth Amendment’s Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. See, e.g., Eisenstadt v. Baird, 405 U. S. 438, 453; Griswold v. Connecticut, 381 U. S. 479, 484–486. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.” (Ibid. 2)

So immediately we have reference to Due Process and the rights under it—dignity, autonomy, “intimate choices.”  Kennedy then lists and discusses four “Principles and traditions” that make marriage “fundamental” and that he say include same-sex marriage.  First, that “the right to personal choice regarding marriage is inherent in the concept of individual autonomy.”  Second “the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.”  Third “is that it safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.”  “Finally, this Court’s cases and the Nation’s traditions make clear that marriage is a keystone of the Nation’s social order.” (Ibid., 3-4).  In each of these points, Kennedy also wrote of it being “demeaning” to homosexuals to deny the application of these principles to them.

Then Kennedy moves to the Equal Protection grounds, writing “The challenged laws burden the liberty of same-sex couples, and they abridge central precepts of equality. The marriage laws at issue are in essence unequal: Same-sex couples are denied benefits afforded opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial works a grave and continuing harm, serving to disrespect and subordinate gays and lesbians.” (Ibid., 4)  To sum up, Kennedy writes that  “The petitioners’ stories show the urgency of the issue they present to the Court, which has a duty to address these claims and answer these questions. Respondents’ argument that allowing same sex couples to wed will harm marriage as an institution rests on a counterintuitive view of opposite-sex couples’ decisions about marriage and parenthood. Finally, the First Amendment ensures that religions, those who adhere to religious doctrines, and others have protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths.”  (Ibid., 5)

The last sentence is particularly interesting.  But first, let’s realize that Kennedy and the majority had to do some remarkable linguistic and intellectual gymnastics to get the fight of same-sex marriage as a fundamental right when I am not even sure traditional marriage has been treated with that degree of homage.  There have been cases recognizing a right to marry, but marriage itself has been generally treated as “ho-hum” until now, as if Kennedy thought he had to bend over backward.  But now same-sex marriage has been declared the law of the land for all, with no opportunity for states to dissent.  The rights of dignity, et al. have been created from whole cloth, but are now enshrined.  But what about religious organizations—churches, Christian schools, Christian services, and businesses that exercise conscience rights?  Kennedy says rather flippantly that the First Amendment will protect religion, but he is so vague that we cannot know yet what may happen.

Various legal analysts have tried to play prophet by saying that this decision is of little or no threat.  But I am not sure.  Are we reduced to “balancing” First Amendment rights against same-sex marriage rights?  What indeed does it mean, if anything, that the decision was limited pretty narrowly to homosexual marriage and did not address other issues—refusals to bake cakes, take photographs for homosexual weddings, actually officiate homosexual marriages (I would be shocked if that one was attacked successfully), employ homosexuals at religious institutions, provide student housing for homosexual couples at a college, or even accept them for admission?  Will institutions that refuse to give in refuse their tax-exempt status (that is really the least of my worries).  More importantly, will Christians be forced to give in on pain of some worse punishment?   Will we be forced to give in by later judicial decisions that will undoubtedly have to arise?  Will the Court carve out exemptions and if so, how far will it go, if at all?  Conscience rights will have to be considered if the First Amendment means anything at all.  Free speech will also become an issue.  Where will it come into play?

I am as I said disappointed in the holding.  I confess to wondering just how far our “collective morality” may fall.  It is interesting to hear and read about scholars and pundits who say (and believe) that morality cannot and should not be legislated.   Yet, that is exactly what has happened today—do I hear them now?  No, it is only when they don’t like the particular mandates that they protest.

I do believe that the most strident and radical homosexual groups are in the minority, but a minority can make a great deal of effective noise.  But as Christians, I believe we also have an opportunity to bring the Gospel to bear faithfully.  We have a chance to disagree winsomely, without compromising but also without hate.  We of all people ought to be confident and strong in our faith.  This is the silver lining.  God is still providentially ruling and His Kingdom will be fulfilled.

There is much more to be said, but it must wait.

5 thoughts on “Justice Kennedy and the Same-Sex Marriage Ruling: Disappointed But Not Despairing”

  1. Marc
    Thanks for your post. You have a law degree and Constitutional law is quite complicated for lawyers, much less non lawyers. You laid out the basic principles. I always find it interesting that people won’t opine about medicine without training but they feel free to be overly opinionated on legal issues. I heard a bunch of untrained blowhards on the radio today.

    Anyway, It’s interesting that the Court did not say that gays are a protected class. That may be key. I agree with you that the big fight in the future will be the tension between the 1st amendment (the right to exercise religions beliefs) and this holding that marriage is fundamental right.

  2. “I am as I said disappointed in the holding. I confess to wondering just how far our “collective morality” may fall. It is interesting to hear and read about scholars and pundits who say (and believe) that legislation cannot and should not be legislated. ..We of all people ought to be confident and strong in our faith. This is the silver lining. God is still providentially ruling and His Kingdom will be fulfilled.”

    Two questions:

    1. You said “legislation cannot and should not be legislated.” How is that possible?

    2. If God is still providentially ruling, then one must conclude that this Supreme Court ruling is a part of God’s plan. If Justice Kennedy had taken the other side, then that too would have part of God’s plan.

    Even infamous Supreme Court rulings are also a part of God’s plan.

    Plessy v Ferguson.

    Roe v. Wade. Millions of abortions as a part of God’s plan? Sure. Considering the millions of abortions that God performs directly every year–what we euphemistically refer to as “miscarriages”–this logical conclusion should not be hard to accept. Not that I support abortion.

    I know some people of faith are lamenting the so-called decline of this nation, just as they did when Brown v Board and the Civil Rights Acts of 1957 and 1964 threatened segregation, which many Christians saw as divinely ordained. But they got over it.

    I expect Christians will in a few decades decry prejudice against gays, just as they decry racism today, despite the fact that both major parties supported racist policies and that it was the communist party in this nation that took the first stand against racism.

      1. Let me clarify what I said about legislating morality. I was talking about others, mainly liberal commentators, who argue constantly that we (Christians) want to legislate morality and that one should not to that. Yet that is exactly what the Court did in this case. Will those same people now be consistent?

        Hopefully, that clarfiies.

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