This time it’s not Bush’s fault. It’s Reagan’s. He’s the one who appointed Justice Kennedy who once again could have been the swing vote for conservatives, but instead wrote the SCOTUS opinion against DOMA yesterday.
The opinion overturning DOMA yesterday is a masterpiece of double-speak. It purports to strike down DOMA under the guise of upholding states’ rights—in this case the alleged “the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power.” The decision goes so far as to call federal interference in this “dignity” the “essence” of the case.
Some of my liberty-loving friends therefore noted that this is actually a good thing, because it simply says that the federal government has no right to interfere with the states in this regard.
But they have been deceived by the clever language of the bill in this regard. The “essence” here is not referring to the federal government’s interference in the state’s “sovereign power” in general, but rather in the “equal dignity” which the state just so happened to uphold while exercising its sovereign power.
This alone signals to me that the Court places more weight upon its view of Constitutional Equality than upon states’ rights.
And sure enough, Kennedy goes on to make this clearer. His opinion decries the original intent of DOMA, which was “to ensure that if any State decides to recognize same-sex marriages, those unions will be treated as second-class marriages for purposes of federal law.” And what issue does this raise for the federal judge? The Tenth Amendment? No. “This raises a most serious question under the Constitution’s Fifth Amendment.” That is, Due Process, and by extension the 14th and Equal Protection. That’s priority for Kennedy.
So those who think the Court has merely removed the issue back to the states to decide are missing the Constitutional back door. The Court is not saying that. The Court is saying that insofar as a state enacts laws that provide Constitutional protections Equally, then the Court will uphold those laws even against federal interference. But the Court has said nothing in this case about States which enact laws prohibiting homosexual marriage, or failing to sanction homosexual marriage.
So what about states that still do not sanction homosexual marriages? Isn’t their “sovereign power” to determine law left intact? Yes, somewhat, for the time being. But this is where the Kennedy rabbit hole goes much deeper.
As late as 1986, SCOTUS rejected a challenge to states’ rights in regard to state laws against sodomy. An appeals court held the state laws unconstitutional, but the Supreme Court overturned this in Bowers v. Hardwick, arguing that the Constitution gave no protection to sodomy, and that the majority of States traditionally had enacted laws against it. That decision specifically warned against federal Courts leveraging the Due Process clause as a means of deciding this issue. According to the Syllabus, “There should be great resistance to expand the reach of the Due Process Clauses to cover new fundamental rights. Otherwise, the Judiciary necessarily would take upon itself further authority to govern the country without constitutional authority.”
Liberal activists continued to try to chip away at this view until a watershed decision was reached in 2003: Lawrence et al. v. Texas. In this case, a convicted sodomite couple was challenging the legitimacy of Texas’ sodomy laws, specifically on the grounds that those laws violated their rights under the Due Process Clause. SCOTUS overturned precedent and ruled in favor of Equality. The effective result was to nullify all state laws against sodomy.
Here are some choice excerpts from that case Syllabus:
The liberty protected by the Constitution allows homosexual persons the right to choose to enter upon relationships in the confines of their homes and their own private lives and still retain their dignity as free persons. . . .
. . . that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. . . .
Where a case’s foundations have sustained serious erosion, criticism from other sources is of greater significance. . . . [T]he case’s reasoning and holding have been rejected by the European Court of Human Rights, and that other nations have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. . . .
Then, after appealing to international law and social mores, the Court then cited the dissenting judge from the case it was overturning, in an effort to marginalize the social mores concentrated within a state:
In his dissenting opinion in Bowers Justice Stevens concluded that (1) the fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice, and (2) individual decisions concerning the intimacies of physical relationships, even when not intended to produce offspring, are a form of “liberty” protected by due process.
What do we take from this? That Equality and Due Process trump states’ rights and popular opinion in the opinion of the Court in regard to homosexual rights.
And guess what? Lawrence v. Texas was an opinion written by the same Justice Anthony Kennedy.
And just so you know that these issues and cases are all connected in Kennedy’s mind, let us read again from the most recent case against DOMA. Kennedy writes,
DOMA forces same-sex couples to live as married for the purpose of state law but unmarried for the purpose of federal law, thus diminishing the stability and predictability of basic personal relations the State has found it proper to acknowledge and protect. By this dynamic DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, see Lawrence, 539 U. S. 558, and whose relationship the State has sought to dignify.
So while touting strong States’ Rights language just a couple paragraphs earlier, Kennedy is now showing more clearly that the real issue is to uphold the Constitutional freedom to sodomize, and then he cites the very opinion He wrote in order to justify this.
Note also the other influencing issues here: human dignity, how the whole world views us, and the “stability and predictability of basic personal relations” (this is usually an argument against homosexual marriage).
It’s no surprise that we hear now that the homosexual lobby is already planning the next step. They want to ensure that federal benefits will be available to homosexual couples even in states that do not recognize homosexual marriages. The step after that, already promoted by Obama himself, is to force those states to recognize the homosexual marriages performed in other states.
In order to accomplish this, the Court or Congress will have to strike down section 2 of DOMA, which is still standing (the Court decision only struck down Section 3). And then the same powers will have to make the next step and either rule or legislate that traditional marriage states must recognize homosexual marriages from others.
This will be the big test of states’ rights, but to be honest with you, I think it’s already lost. Not that I’m a pessimist by any means. But Kennedy’s the ringer. His sly language in this bill coupled with his overt steamrolling of states’ rights in regard to sexuality in Lawrence makes it virtually a closed case as to how he will decide in the future.
The Lawrence Syllabus concludes saying, “Petitioners’ right to liberty under the Due Process Clause gives them the full right to engage in private conduct without government intervention.” This is a more general statement that just sodomy: this is all private conduct, and court will rule that this includes the free choice and private conduct of marriage. This will be determined to be a federal, Constitutional right, and states will be forced to recognize it.
To further enforce my opinion, that Syllabus of Lawrence also says that “this Court’s obligation is to define the liberty of all, not to mandate its own moral code” and cites a 1992 case, Planned Parenthood of Southeast Pennsylvania v. Casey. Kennedy concurred with the liberals in that case, the opinion written by Sandra Day O’Connor. In Lawrence, Kennedy applied it to argue that “the Due Process Clause protects personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.”
So there you go. The rabbit hole goes deep, but the network of Kennedy’s stealth judicial activism is not hard to unwind. As he concurred with O’Connor:
the adjudication of substantive due process claims may require this Court to exercise its reasoned judgment in determining the boundaries between the individual’s liberty and the demands of organized society. The Court’s decisions have afforded constitutional protection to personal decisions relating to marriage. . . .
I predict that Kennedy will apply the same Due Process protections to homosexual marriage as he did to sodomy in general, and the Court will eventually force all states to recognize it—their “sovereign power” notwithstanding. It will be another 5–4 decision.
The Tenth Amendment was a joke from the beginning. The Fourteenth Amendment has driven a thousand stakes through its heart. Christians should prepare for this inevitability and get busy working to decentralize federal and even state power. These are the things that keep allowing one Supreme Court swing vote to upend even the entrenched social ethics of whole peoples and states—and still convince them they’re free.