Justice Kennedy has been moving in this direction in previous rulings, and he’s clearly not done yet
In the just-decided United States v. Windsor case, Justice Anthony Kennedy delivered the opinion of the court that the Federal Defense of Marriage Act, which defines marriage as between a man and a woman, is unconstitutional.
Within hours, the decision began rippling through the Federal government, as it affects more than 1,000 Federal statutes and the whole realm of Federal regulations. "The Department of Defense welcomes the Supreme Court’s decision today on the Defense of Marriage Act," said an eager Secretary of Defense Chuck Hagel. "The department will immediately begin the process of implementing the Supreme Court’s decision in consultation with the Department of Justice and other executive branch agencies. The Department of Defense intends to make the same benefits available to all military spouses – regardless of sexual orientation – as soon as possible. That is now the law and it is the right thing to do".
Right, as in the “moral” thing to do? Let us consider.
In the history of the United States, only heterosexual married couples have ever received Federal marriage benefits. In 1996, confirming what had always been the practice, Congress passed DOMA to provide a formal definition of “marriage” and “spouse” for the purposes of all acts of Congress and any Federal regulations.
How did this become a problem?
In 2009, Edith Windsor, who had “married” her lesbian partner in Ontario, Canada, in 2007, sought to claim the Federal estate tax exemption for surviving spouses when her partner died. In compliance with DOMA, the Internal Revenue Service denied the exemption for the US$363,053 that she was required to pay. Windsor, a New York resident, sued, contending that the principles of equal protection incorporated in the Fifth Amendment were violated since her marriage had been recognized by the state of New York.
The Federal District Court found in her favor, as did the Second Circuit Court. The House of Representatives was allowed to intervene in the case to defend the constitutionality of DOMA when the Obama administration withdrew its defense of the law. Thus, the case arrived at the Supreme Court in the spring of 2013.
The Windsor decision, delivered on June 26, 2013, the 10th anniversary of the Lawrence v. Texas decision, was every bit as bad as one would expect from its predecessors. It simply followed their logic. In fact, it was so predictable as to make specious Justice Kennedy’s preceding claim in Lawrence that that decision “does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”.
Of course it did.
In retrospect, his remark sounds almost hilariously naïve or disingenuous. In fact, in certain aspects, the Windsor case reads as if Justice Kennedy is having a conversation with himself over the span of a decade. Finally, 10 years after Lawrence, he closes the loop. He even quotes himself. “Private, consensual sexual intimacy between two adult persons of the same sex may not be punished by the State,” he said, “and it can form ‘but one element in a personal bond that is more enduring’".(Lawrence v. Texas, 539 U. S. 558, 567 (2003)). That’s the setup. Then Justice Kennedy closes the loop:
“By its recognition of the validity of same-sex marriages performed in other jurisdictions and then by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond. For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status. This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages”.
That bridge from “lawful conduct” to “lawful status”, conferring equal dignity upon same-sex marriage, had been there to cross ever since Justice Kennedy lifted the starting gate in Lawrence. Once he and his confrères had found a constitutional right to sodomy, there was almost no way to stop enshrining the act as the basis for “marriage”. All the preceding judicial groundwork is brought to fruition here, though it leaves one step yet remaining – to declare unconstitutional all remaining state laws that restrict marriage to a man and a woman.
In his dissent, Justice Antonin Scalia predicted that this will be the next shoe to drop, just as he predicted this decision in his Lawrence dissent. In fact, he brilliantly illustrates how this will happen by taking several paragraphs of the Windsor decision and simply substituting the words “this state law” for “DOMA”. Voilà, there is the case ready-made for voiding all state prohibitions of same-sex marriage. He also stated that:
“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition has ‘the purpose and effect to disparage and to injure’ the “personhood and dignity” of same sex couples”.
In Windsor, we see nearly complete the results of the denial of marriage as a fundamental institution natural to man, and the redefinition of it as an artificial construction, à la Jean-Jacques Rousseau, that can be remolded to his will and whim. "The Federal statute is invalid,” Kennedy wrote, “for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the state, by its marriage laws, sought to protect in personhood and dignity".
If marriage is an artificial fabrication, Justice Kennedy is right. The state can redefine the convention of marriage and assign it to whom it will, and no one can gainsay it. In fact, to deny marriage to anyone would seem to be arbitrary.
Yet this is not what the Supreme Court said in the past. Recall that in 1885, the Murphy v. Ramsey ruling declared that, “For certainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the coordinate states of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guarantee of that reverent morality which is the source of all beneficent progress in social and political improvement…”
This seems a rather eloquent enunciation of a “legitimate purpose” in the definition of marriage as between a man and a woman, one that Aristotle would easily recognize. How could it not have occurred to Justice Kennedy, who seemed completely unaware of it – to the point that he dismisses its possible existence as a legitimate purpose?
Another interesting point is the repeated emphasis in Windsor on the authority of state law to define marriage. Indeed, no constitutional scholar would dispute this authority. But does it include the power to define it as anything? The Murphy ruling did not hold so. In Reynolds v. United States (1878), the Court also did not consider that it included polygamy because, in part, “polygamy leads to the patriarchal principle… which, when applied to large communities, fetters the people in stationary despotism, while that principle cannot long exist in connection with monogamy”.
Apparently, there is a relationship between the sort of marriage you allow and the freedom you exercise. Was Justice Kennedy aware of this consideration? Also, did not the prohibition of polygamy have “the purpose and effect to disparage and to injure” those who practiced it? Justice Kennedy said that DOMA’s message to “married” homosexuals and lesbians was “that their marriage is less worthy than the marriages of others" and imposed "a stigma upon all who enter into same-sex marriages". If that was his main objection, when Justice Kennedy is confronted with cases of polygamy or polyandry, as surely he will be if he lives long enough, what criteria has he left in place to object to them?
What DOMA did was refuse to subsidize the redefinition of marriage in those states that chose to redefine it by refusing Federal benefits to same-sex couples. This, of course, was completely within the legitimate power of Congress to do, and did not in any way constitutionally impinge upon the power of the states. The Windsor decision proposes the novel notion that definitions in state law preempt definitions in Federal law that concern Federal law.
Since when?
The philosophical and moral nub of the matter was reached with Justice Kennedy’s statement that, “What the State of New York treats as alike the Federal law deems unlike by a law designed to injure the same class the State seeks to protect”. In other words, are heterosexual marriages like or unlike same-sex “marriages”? Are sodomitical “marriages”, as Windsor asserts, “equal with all other marriages”? And, therefore, was the problem with DOMA that it strove to take what was equal and “make them unequal”, and that its “principal purpose is to impose inequality”? Was DOMA imposing inequality or simply recognizing it? Is sodomy really the same as conjugal coition?
Obviously, the Windsor ruling rests upon the extraordinary proposition that marriage, as it has been understood throughout recorded history, is the same as sodomitical “marriage”, which was unheard of until the Netherlands introduced it in 2000.
To claim that homosexual marriage is equivalent to the family, the sine qua non of the enduring existence of any political order, is to deny the foundations of society. To claim that a type of behavior on which the polis is founded is equivalent to a type of behavior inimical to a polity’s foundation is to deny the principle of non-contradiction. Homosexuals want their marriages to be recognized as a part of the social order, and the Supreme Court has bestowed it.
However, it has been clear since at least Aristotle that the interest of the state in marriage is in its essential role for the propagation of society. Homosexual “marriages” play no such part in society, as they are neither unitive nor procreative; so what would be the interest of the state in recognizing them? Why is homosexual marriage morally or politically worthy of institutional protection? The price for providing it is to remove both the unitive and procreative aspects essential to marriage, thus evacuating it of meaning and replacing it with “pretend” marriage. So as not to hurt the feelings of homosexuals, let them pretend they are married. In fact, let’s pretend with them. Even more, we will make everyone pretend together. Then no one will be hurt.
Alas, the price for this embrace of unreality is too high. It is a betrayal of the nuptial meaning of the body. Sodomy is an act opposed to the good of marriage. How, then, can it be its foundation? Something cannot be its opposite. But the Supreme Court has just said that it can, and that the Federal government and we as taxpayers must agree. “Thinking against nature”, wrote Irenaeus in Against Heresies (180 AD), “you will become foolish. And if you persist you will fall into insanity”. QED.
