Justice Kennedy and Dignity: Why, on his own principles, he should not vote for same-sex marriage.

National Review ^ | 12/04/2014 | Howard Slugh

[SeekAndFind]

Justice Kennedy’s jurisprudence evidences a deep concern for the dignity of same-sex couples. That’s why he should not vote to create a right to same-sex marriage. This sounds counterintuitive, but it’s true, for reasons I shall explain.

On October 6, the Supreme Court declined to review any of the seven same-sex-marriage cases sent to it. This momentarily dashed the hopes of activists and advocates that the court would recognize a constitutional right to same-sex marriage. A few weeks later, the Sixth Circuit upheld four states’ traditional marriage laws. This established a conflict between the Sixth Circuit and those appellate courts that have struck down such laws, a situation virtually demanding the Supreme Court’s attention.

Some court watchers expect the court to rule five to four in favor of the new right, with Justice Kennedy casting the deciding vote. After all, Justice Kennedy has authored opinions establishing the right “for two persons of the same sex to engage in certain intimate sexual conduct,” overturning a Colorado law that allegedly discriminated on the basis of sexual orientation, and striking down the Defense of Marriage Act (DOMA). On the surface, this pattern suggests that Justice Kennedy will indeed cast the deciding vote in favor of creating same-sex marriage. However, if one digs a little deeper, there is reason to reconsider that expectation.

Justice Kennedy’s opinions emphasize “a constitutional order in which all persons are treated with fairness and equal dignity,” especially in cases dealing with intimate relations. In Lawrence v. Texas, he voted to decriminalize sodomy in order to protect “the dignity of the persons charged” and out of concern for their “dignity as free persons.” In Planned Parenthood v. Casey, he joined, and possibly wrote, an opinion defending the alleged right to abortion as “central to personal dignity and autonomy.” And in the most striking and relevant example, he invoked dignity ten times while requiring the federal government to recognize state-sanctioned same-sex marriages in United States v. Windsor.

At first blush, this pattern seems to support the notion that Justice Kennedy will vote to establish same-sex marriage in the name of protecting the dignity of same-sex couples. However, that logic misses an important distinction between the cases discussed above and the same-sex-marriage cases. In Lawrence, Casey, and Windsor, Justice Kennedy perceived the law itself as injuring the litigants’ dignity. In those cases, Kennedy could restore their dignity by simply removing that impediment. The same-sex-marriage cases are distinct from those prior cases in a manner elucidated by Kennedy’s opinion in Windsor.

In that case, Justice Kennedy indicated that “the State’s decision to give [same-sex couples] the right to marry conferred upon them a dignity and status of immense import.” He also stated: “When the State used its historic and essential authority to define the marital relation [to include same-sex marriage], its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community.” He explained that “by authorizing same-sex unions and same-sex marriages, New York sought to give further protection and dignity to that bond.” Finally, he claimed that the federal government injured same-sex couples by interfering with the state’s decision, which “reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving under­standing of the meaning of equality.”

In each of these passages, the dignity Justice Kennedy praises is generated by a community’s volitional decision to legally recognize and celebrate same-sex relationships. That is what makes the same-sex-marriage cases distinct from Lawrence, Casey, and Windsor. In the same-sex-marriage cases, he cannot restore anyone’s dignity by striking down a law and removing an impediment. The process by which couples obtain the right to same-sex marriage matters. In order to be meaningful, access to the institution of marriage needs to be freely offered rather than judicially mandated.

No one can say for certain where the ongoing public discussion over marriage will end up, although the trends do seem to favor proponents of same-sex marriage. The one thing we know for sure is that if the Supreme Court cuts off the discussion by imposing same-sex marriage nationwide, it would rob same-sex couples of the opportunity to persuade their friends and neighbors to willingly redefine marriage. In doing so, the court would prevent those couples from ever achieving the status Justice Kennedy highlighted in Windsor.

In another context, Justice Kennedy noted that “a democracy has the capacity — and the duty — to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.” Justice Kennedy can be remembered as the decisive vote for creating same-sex marriage or as the man who gave same-sex couples the opportunity to argue for the dignity of their relationships. It is unlikely that he can be remembered as both.

— Howard Slugh is an attorney in Washington, D.C.

[Oliviaforever]

Kennedy has shown his hand on Gay Marriage and should recuse himself from any further decisions in the question.

[MarkRegal05]

Agree. I don’t trust him one bit.
Look at the company he keeps..

“He’s the author of three of the Supreme Court’s most influential opinions on the topic, including a decision that overturned the ban on federal benefits for gay couples who were married. And the gay community is thankful. The San Francisco Gay Men’s Chorus honored Mr. Kennedy with a rendition of “Give ‘Em Hope” at a recent American Bar Association meeting in the city, The New York Times reported.”

http://www.washingtontimes.com/news/2013/sep/2/justice-anthony-kennedys-legacy-friend-gay-cause/

[StonyBurk]

Wm. Blackstone -Commentaries on the Laws of England which sold more copies in the USA than in England) and John Locke -Of Civil Government book two —two of the three most cited European thinkers during the founding era as Documented reasonably well by Donald S. Lutz back in the 1980’s and by John Eidsmoe in Christianity and the Constitution,paperback 1995 — agreed human laws must not contradict the laws dictated by God,Himself or they are ill made —ad ought not be allowed remain. The Divine Law reflected in Scriptures clearly record from the eyewitness accounts of Matthew and Mark how Jesus that Rabbi from Nazareth called Christ by his followers who would be called Christians first at Antioch. (as recorded in the Acts of the Apostles) Jesus answered the Pharisees that had come to tempt Him “have you not read that HE which made them at the beginning made them male and female (reflecting the Law dictated by god,Himself ,at the beginning Genesis chapter 1 verse 27) and said for this cause shall a man leave his father and his mother and shall cleave unto his wife and the twain shall be one flesh.” (the law dictated by God,Himself in Genesis 2:24) SO Jesus as reflected by both Matthew and Mark cites the Law of Moses dictated by God Himself. so by the sure testimony of at least four Matthew,Mark, Jesus Christ, and Moses -lest we forget the author and finisher of the Law all men are obligated to obey “God Almighty the thing is settled —Marriage is the union of one man and one woman what God hath joined together let no man put asunder. As it is written .Not even the US supreme Court—nor any lesser Court—Nor any State Legislature has power to change that. It would be contrary to American Law for any to declare the law now says the Laws dictated by God,himself are void . President Washington proclaimed it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor....”Oct.3,1789 Thanksgiving proclamation. President Lincoln in Proclamation March 30,1863 “...it is the duty of nations as well as men to own their dependence upon the overruling power of God,to confess their sins and transgressions in humble sorrow yet with assured hope that genuine repentance will lead to mercy and pardon, and to recognize the sublime truth, announced in Holy Scriptures and proven by all history :that those nations only are blessed whose God is the Lord:....”Presidential proclamation of a National day of fasting,humiliation, and prayer. How can any man say they acknowledge God and obey His will by changing his Law? It matter NOT what any Court—or Government made by men declares Marriage legally and morally is as it is written in Scriptures—as was once recognized by our Government and Courts and all of society except the Reprobates. That is the law I will recognize.