The Supreme Court has now heard oral arguments on the marriage redefinition cases. I was already pessimistic about the eventual outcome of this case but, based on the arguments, I am even more concerned about what it will mean.
Conventional wisdom holds that Justice Anthony Kennedy will be the crucial “swing” vote in this case, as he has been in many others. In fact, his role as the ultimate, sole decider of momentous constitutional questions makes me wonder about the notion of “one man, one vote”, on which our nation has relied for so long. What kind of democracy are we, if one Supreme Court justice is the “one man” and his vote is the only “one vote” that matters? That is why I often refer to the Supreme Court, and particularly Justice Kennedy, as “our Black-Robed Platonic Guardian Rulers on the Court”.
If the oral argument revealed anything, it certainly showed how deeply confused Justice Kennedy is about the role of government in our society. In many of Justice Kennedy’s decisions on moral issues, he places a great deal of emphasis on the notion of “dignity” as a principle of constitutional law. Needless to say, the Constitution contains no mention of the word “dignity” — it speaks of equal protection, due process, many specific rights, but not “dignity”. Nor can anyone determine how it became grafted onto the basic law of our polity.
That doesn’t stop the fertile imagination of Justice Kennedy. In Windsor v. United States, the first Supreme Court marriage redefinition fiasco, Justice Kennedy had this to say about state laws surrounding marriage: “The State’s decision to give this class of persons [i.e., men and women] the right to marry conferred upon them a dignity and status of immense import.” He went on to describe these laws as an “interference with the equal dignity of same-sex marriages”.
Note the use of that one key word — “conferred”. This is crucial to understand the real significance of Justice Kennedy’s muddled Constitutional theories, which become clear in the oral arguments yesterday, in this strange exchange between Justice Kennedy and the attorney for Michigan, who was defending the traditional understanding of marriage:
Mr. Bursch (Counsel for Michigan): … what they are asking you to do is to take an institution, which was never intended to be dignitary bestowing, and make it dignitary bestowing.
Justice Kennedy: I don’t understand this not dignity bestowing. I thought that was the whole purpose of marriage. It bestows dignity on both man and woman in a traditional marriage… It’s dignity bestowing, and these parties say they want to have that same ennoblement… I think many states would be surprised, with reference to traditional marriages, they are not enhancing the dignity of both the parties.
One can only wonder where he got this idea from. The “whole purpose of marriage” is to bestow dignity or to grant “ennoblement”? Who ever heard of such an idea? These concepts have absolutely no foundation in the Constitution or in rationality.
What is truly breath-taking is the assumption the government has the authority and mandate to bestow dignity or “ennoblement” upon a person. A government that can do that, is truly unlimited in its power — it is indeed Hobbes’ Leviathan, absolute and without any final restraint.
This is dangerous nonsense — our dignity comes from our Creator, and is intrinsic to us as human beings. No government can add or detract from it, and it is not conditional upon any principle of law, decision of a court, or the desires of others. The government has nothing to do with dignity, and even less to do with nobility. If we grant that kind of power to a government, then we have ceased to be free people, and we are all in trouble.
We who are likely to be on the losing side of the marriage definition case need to consider this — what the government can bestow, it can also revoke or withhold. If we are branded as “bigots” for holding to the true meaning of marriage, what will the government do to our legal rights, under the rubric of upholding the dignity of others?
There is indeed much at stake here, and the confused and dangerous ideas of Justice Kennedy give no cause for optimism about the results of this case, and the future of ordered liberty in America.