Tuesday, July 7, 2015
From Justice Kennedy's opinion in Obergefell v. Hodges, additional evidence of "False Enlightenment at the Court"
The title of a new First Things article on Obergefell v. Hodges is "False Enlightenment at the Court." Its opening paragraph asserts that "[t]he basis of the decision is a claim to special enlightenment (we shall not say 'revelation') about the meaning and import of liberty ...."
That sounds close to correct, though I will go further and say that Justice Kennedy's opinion for the Court purports to be a revelation for the rest of us. In it, the five Justices in the majority claim to possess a new awareness and an improved understanding that enables them to carry out their judicial duty of responding to the petitioners' stories, and the petitioners' hopes, and the universal fear of loneliness (among other things), by enforcing the central meaning of a fundamental right that is now manifest in our basic charter. Behold:
- "[C]hanged understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations ...."
- "When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed."
- "Marriage responds to the universal fear that a lonely person might call out only to find no one there."
- "The limitation of marriage to opposite-sex couples may long have seemed natural and just, but its inconsistency with the central meaning of the fundamental right to marry is now manifest."
- "The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era."
- "The reasons why marriage is a fundamental right became more clear and compelling from a full awareness and understanding of the hurt that resulted from laws barring interracial unions."
- "[I]n interpreting the Equal Protection Clause, the Court has recognized that new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged."
- "Responding to a new awareness, the Court invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage."
- "It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality."
- "This [decades-long process of legislation, litigation, and debate] has led to an enhanced understanding of the issue--an understanding now reflected in the arguments now presented for resolution as a matter of constitutional law."
- "The Nation's courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter."
- "The petitioners' stories make clear the urgency of the issue they present to the Court."
- "Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions."
A current exhibition about the Supreme Court building calls it "America's Temple of Justice." If we take Justice Kennedy's language seriously--and we should since his opinion purports to supply the public justification for the Court's decision--Justice Kennedy apparently takes this temple idea literally. Sitting behind the Supreme Bench for almost thirty years now, he may have been gazing too intently at the West Wall Frieze opposite his judicial perch. Seeing himself in its story of Good versus Evil, he is not just a judge, but Justice herself, discerning and disseminating Divine Inspiration.

His goddess, of course, is Liberty.
https://mirrorofjustice.blogs.com/mirrorofjustice/2015/07/from-justice-kennedys-opinion-in-obergefell-v-hodges-additional-evidence-of-false-enlightenment-at-t.html