An overlooked religious response to same-sex marriage: Justice Kennedy's Obergefell opinion

What is the most consequential religious response to same-sex marriage in recent times? 

To ask this question is to place same-sex marriage as the status quo and to frame religious responses to it as reactionary. But what if the right answer to the opening question is Justice Kennedy's opinion for the Court in Obergefell v. Hodges itself?

Isn't it?

These were some of the thoughts that went into my panel remarks a week ago at the AALS Law & Religion Section.

I've spoken on a number of difficult and sensitive topics before a range of audiences. But participating in that panel had me more twisted up with concern than I can recall for any other panel or talk. So I decided to square up with the audience and identify just how awkward the situation was for me, and why.

I explained that I was there as an unbeliever, speaking to a room packed with true believers. Most in that audience truly believed that the Constitution of the United States forbids states from continuing with the husband/wife understanding of civil marriage. They truly believed that the Supreme Court of the United States appropriately ordered a redefinition of civil marriage in state law. They truly believed that federal law commands what the Supreme Court did.

And I did not. None of it. 

That's awkward, isn't it? What could profitably be said between us, when we were so far apart on the main issue?

My basic tack was to argue that there was religion on both sides--that the object of their belief could itself be understood in religious terms. I gave several reasons for understanding Justice Kennedy's constitutionalization of same-sex marriage in Obergefell in religious terms. Among them:

1. The language of the opinion: The opinion speaks in terms of revelation, as I've previously argued. 

2. The operative understanding of the Constitution: The Constitution of Obergefell is not an authoritative legal document with fixed, ascertainable legal content. Instead, it is "a charter protecting the right of all persons to enjoy liberty as we learn its meaning." Or, as the plurality opinion described the Constitution in Casey: "a covenant ... [with] written terms [that] embody ideas and aspirations that must survive more ages than one."

3. Justice Kennedy's professed self-understanding: In a 2005 interview with the Academy of Achievement, Justice Kennedy said that he thought people would be happiest if they could "find a profession ... where [they] manipulate symbols that have an intrinsic ethical content." That's what he think his job requires. Asked about the most important qualities for achievement in his field, Kennedy answered that it was important to understand that "the framers wanted you to shape the destiny of the country." And that's what he believes he is doing in his constitutional lawmaking. 

4. The operative understanding of the judicial role: A case like Obergefell, Kennedy's opinion suggests, does not call for dry legal analysis and cool, detached reasoning. The good judge must respond to the petitioners' stories. The operative understanding of the judicial role is to respond 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.

5. The social/political/cultural response: "Love wins" is not a typical response to the output of constitutional litigation. Yet people have invoked all of the theological virtues (faith, hope, and love), in describing the opinion. The White House lit up in a rainbow. President Obama described the decision as delivering "justice like a thunderbolt." People are using the opinion as a type of scripture for their marriage ceremonies. 

The point of this exercise was not simply, or even primarily, to undermine the legal authority of Obergefell. It is law of a sort, just as any other erroneous Supreme Court decision that has not been overruled is law of a sort. The real point is that Obergefell as religious response does not enable the same type of reasoned disagreement that more typically legal opinions generate. If one does not accept Justice Kennedy's revelation, as I do not, there's not that much to talk about as lawyers. Which is unfortunate. Personal testimonies and conversion certainly have their place in human experience. But these are not the sort of thing that make for good constitutional law.