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The Court and Marriage: Anthony Kennedy's Hate Speech

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Mark Twain said of Wagner's music that "It's not as bad as it sounds." The decisions brought forth on Wednesday morning by the Supreme Court are far worse than they sound. If we credit the authors of the two main opinions, Justice Kennedy (in U.S. v Windsor) and Chief Justice Roberts (in Hollingsworth v. Perry, on Proposition 8 in California), the two decisions affect to be quite limited in their reach. The justices would feign to be artisans of their craft carefully shaping judgments precisely confined-or even, in the case of Roberts, holding back from a judgment altogether. But in truth, these judgments cannot be cabined. They lay down the predicates for litigation that will clearly unfold now, and with short, easy steps, virtually all of the barriers to same-sex marriage in this country can be swept away. Even the constitutional amendments, passed by so many of the States, can now be overridden.

In U.S. v. Windsor, Justice Kennedy wrote with only the liberal bloc behind him as they struck down Section 3 of the Defense of Marriage Act (DOMA). That was the part of the Act in which the Congress declared that, for the purposes of federal law, all references to "marriage" would refer only to "a legal union between one man and one woman as husband and wife." Kennedy affected to be a high friend of federalism here, respectful of the rights of States, and so he claimed to leave unaffected Section 2 of DOMA, the part that sought to prop up the authority of a State to refuse to credit a same-sex marriage brought in from another State. That section sought to prevent one State from indirectly nationalizing homosexual marriage, through the engine of the Full Faith and Credit Clause of the Constitution. Justice Kennedy insisted that the decision on Section 3 did not touch Section 2: it would not compel any State to recognize same-sex marriage. But as we'll see, this is one of those claims that Justice Scalia rightly characterized as "bald, unreasoned disclaimers."

In the second case, Hollingsworth v. Perry, Chief Justice Roberts wrote for another closely divided Court in refusing to render a judgment in the case coming from California on Proposition 8. With Proposition 8 the voters had amended the constitution of the State to preserve marriage as the union of one man and one woman. Judge Vaughn Walker, in the federal district court, struck down that amendment, and his decision was confirmed by an appellate panel in the 9th Circuit. But when it came to an appeal to the U.S. Supreme Court the governor of the State refused to defend the constitutional amendment in his own State. Through a decision of the Supreme Court of California, the backers of the Amendment were credited with the standing to defend the measure in further litigation. Chief Justice Roberts insisted now that the backers of the Amendment didn't have the standing to sue in federal courts. The backers of the law had what Roberts was pleased to call an "ideological" interest. Others of us would call it a "principled interest" in the measure they had worked so hard to pass. But in the view of the majority (a majority containing here Justice Scalia), the backers had no personal, or material interests at stake (as though the material interests were the only real interests these people bore). The gay and lesbian couples challenging Proposition 8 could claim that they were being denied the benefits of marriage. The backers of the Amendment had no such material interest at stake.

The Chief Justice seemed to be offering a model of restraint as he and his colleagues would withhold the hand of judgment. But what would be the result? In denying standing, the Supreme Court now swept away the holding of the appellate court. All that is left is the holding of the District Court, which covers only the litigants in the case. And the holding has no precedential standing in any other court. And so, would the case cover no one but the litigants, and would Proposition 8 still be on the books? But more "bald, unreasoned disclaimers."

What is it that finally undoes these "bald, unreasoned disclaimers"? What tells us that these limits announced so gravely will prove illusory? The engine for sweeping them all away comes with Justice Kennedy's language in the case on DOMA. Justice Scalia characterized it quite aptly:

[T]he majority says that the supporters of this Act acted with malice with the "purpose" ... "to disparage and to injure" same-sex couples. It says that the motivation for DOMA was to "demean," ...; to "impose inequality," ...; to "impose . . . a stigma," ...; to deny people "equal dignity," ibid.; to brand gay people as "unworthy,"...; and to "humiliat[e]" their children ...

The very name of the bill, the Defense of Marriage Act, Kennedy took as an offense: As he decodes the meaning of the title, the defense of marriage must imply the denigration or demeaning of homosexuals, or the creation of a disability. All of this comes, to me, with a special sting, because I was in fact one of the architects of the Defense of Marriage Act. I had made the plea for the measure in The Weekly Standard and other publications, and I was given the privilege of leading the testimony on the bill before the Judiciary Committee of the House on May 15, 1996. That legislation did seek to affirm the rightness of marriage as a union of a man and woman, and to affirm that understanding of marriage has never been taken to disparage other people or to create disabilities. To say that a man may not marry another man was to create no disability. One might as aptly say that the laws on marriage create a disability for parents wishing to marry their children. To extract from this affirmation of marriage a deep system of libel is to invoke a meaning that could make sense only in academic enclaves, with people who genuinely seem to think that anyone who would not share their feelings here could only be a bigot. Once again, Justice Scalia caught the full sense of the matter:

[T]o defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. ... In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to "disparage," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.

And yet, all of this had been amply prefigured by Justice Kennedy's notable opinion in Romer v. Evans, in 1995, when he wrote that any move in the law to cast an adverse moral judgment on the homosexual life "seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests." At other points he would refer to it as quite "irrational." That state of mind, telegraphed in advance, was one of the very things that brought forth the Defense of Marriage Act. It was legitimate for a state to refuse to credit a marriage coming in from another State if it had certain moral objections, say, to the marriage of people below a certain age or the marriage of close relatives. But what seemed to be coming in Romer—and what did in fact come by the time the Congress was debating DOMA—was this key, anchoring point: that it would not be permissible any longer to incorporate anywhere in the laws of a State an adverse moral judgment on the homosexual life. Once that point was in place, the prop would be knocked out from under the States if they refused to credit a same-sex marriage coming in from another State. Hence, Section 2 of the Defense of Marriage Act.

But that premise, planted by Kennedy in Romer, was precisely the point that governed the outcome in Lawrence v. Texas in 2003, when the Court struck down the laws on sodomy in Texas. Kennedy insisted on the right of people, in their sexual relationships, to have their autonomy respected. They were not to be demeaned by moral judgments cast by others. Scalia took seriously the premise that Kennedy was planting, and he pointed out what was surely coming: If the laws on marriage refused to accord standing to same-sex relationships, they would be judged as demeaning and unjustified precisely because they cast that adverse judgment and withheld that moral recognition. Kennedy insisted that nothing in the decision in Lawrence entailed any judgment on "whether the government must give formal recognition to any relationship that homosexual persons seek to enter." That is to say: same-sex marriage. To which Scalia famously replied, "Do not believe it." And now, here we were, ten years later, with Scalia's reading quite confirmed. Scalia recalled that encounter from ten years earlier and threw Kennedy's words—and logic—in his face:

Now we are told that DOMA is invalid because it "demeans the couple, whose moral and sexual choices the Constitution protects," ... —with an accompanying citation of Lawrence. It takes real cheek for today's majority to assure us, as it is going out the door, that a constitutional requirement to give formal recognition to same-sex marriage is not at issue here—when what has preceded that assurance is a lecture on how superior the majority's moral judgment in favor of same-sex marriage is to the Congress's hateful moral judgment against it.

To Kennedy, DOMA worked its sinister purpose of demeaning by withholding benefits at the federal level for marriages that were respected in some of the States but not others. A same-sex couple married now in New York may not get the advantages given to spouses in inheritance and federal taxes. But clearly the federal government needed to get clear in that respect on just what constituted marriage when it came to taxes or the immigration of spouses and many other things. Scalia brought back, in that vein, an example that had been presented by Justice Alito during the oral argument: We might have a same-sex couple from New York moving to Alabama, a state that does not recognize same-sex marriage. Next door to them they may have a same-sex couple, long resident in the State. That couple next door could not get the recognition of spouses in their federal taxes, while the transplanted couple from New York could! One would think that example, sure to be borne out, would have been powerful enough to sink the argument. Or it would have shown, at least, the serious interest in having a federal law that remains uniform from one State to another.

Justice Kennedy also found something in DOMA to disrupt the scheme of federalism, for "domestic relations." And after all, the "law on the family" has been the most defining feature of local law. But as Chief Justice Marshall warned years ago, the Constitution could come into play, in overriding local law, if a legislature sought to dissolve contracts of marriage without the consent of the parties. In our own time, of course, we've seen the Constitution invoked to overturn the local laws that barred marriage across racial lines. Or to strike down schemes for assigning the custody of children to parents on the basis of race, when mixed racial marriages are breaking up. And we should recall that what brought forth DOMA in the beginning was the prospect of gay activists flying to Hawaii for a same-sex marriage and then bringing it back to the mainland through the Full Faith and Credit Clause. No local laws can be entirely insulated from the reach of the Constitution when they incorporate principles at odds with that fundamental law. Marriage has never been beyond the reach of the Constitution, and for that reason it could never be solely and entirely a local matter.

The gay activists were willing at once to "federalize" the issue of marriage by moving into the federal courts and invoking the Full Faith and Credit Clause. And after the decisions today they will surely—inescapably—make that move again. The decisions today were billed as limited in their reach, but I return to my original question of what will be at work here to dispel that illusion. Scalia caught the matter precisely because he seems to be far more alert than his colleagues to the dynamic that springs from the logic they are planting in their opinions. Justice Kennedy insisted that the States would remain free to make their own judgments on what they regard as a legitimate marriage. But Scalia noted "the pretense that today's prohibition of laws excluding same-sex marriage is confined to the Federal Government (leaving the second, state-law shoe to be dropped later, maybe next Term)."

The next move is so obvious that it is only a matter of when Justice Kennedy and his friends have the opportunity to drop that second shoe. But we can count on the fact that activists will not be wanting, ready give Providence a Helping Hand. A couple of the same-sex need merely go into a federal court and invoke Justice Kennedy's language in the DOMA case: The Supreme Court has declared now that a law that refuses to recognize same-sex marriage is animated by a passion to demean and denigrate. Any such law cannot find a rational ground of justification. As Kennedy had said, those kinds of laws can be explained only in terms of an irrational "animus."

The same reasoning would apply to Kennedy's claim that nothing in the decision would reach Section 2 and the right of a State to refuse to accept the same-sex marriages coming in from other States. Kennedy's opinion will be hauled out in these cases to argue that the State has no justified ground for refusing to accept same-sex marriage in its own laws. And if that is the case it could surely find no ground of justification for refusing to honor the same marriages coming in from other States.

That could be enough to have the laws and even constitutional provisions overruled. But it gets even better now if the State has a Democratic governor: He is free to declare now that he will not enforce the constitutional amendment, for he thinks it runs counter to the federal Constitution. And by the holding today in the Hollingsworth case on Proposition 8, the backers of the constitutional amendment will have no standing in court to contest the judgment. Constitutional amendments are meant to secure provisions that will not be undone by the shift in season from one election to another. But with the combination of these two cases today, any liberal governor can virtually undo a constitutional amendment on marriage in his State. He can make a nullity of the vibrant politics of a State, which allow citizens to argue and vote in the shaping of their fundamental law.

Thanks to the Court, California has now been stripped of the one redeeming feature of Progressivism: the Initiative and Referendum. The notion here was that the people at large could have interests that may be at odds with the political class and the interest groups with which they have worked out some enduring, comfortable connections. What didn't apparently occur to the Progressives was Machiavelli's insight: that the people at large were often more conservative than the rulers. The Court now, with the decision today, virtually ended this salutary remnant of conservatism in California: From now on, it will no longer be possible to pass a referendum that will go unchallenged in the courts, and be nullified simply by the refusal of the political class to defend it in the courts.

But what about John Roberts's claim in the Hollingsworth case: that the Court is not deciding anything about same-sex marriage; that it is withholding judgment? The Court has held that the question was not "justiciable" in the federal courts, and so, as he said, the decision of the appellate court is swept away. By the judgment of the majority, that court had no business in taking the case. But that still leaves the decision in the District Court, by Judge Walker, striking down Proposition 8 as part of the California Constitution. What happens to that judgment? One possibility is that the judgment remains, but that it applies only to the litigants in the case. Any other people would have to litigate anew. For everyone else, Proposition 8 is still the law. As Scalia points out, the holding in the District Court would have no authority, no precedential value, for any other federal court or any other court in the country.

But again we should look, with Scalia, to the dynamic set off by the principles in the case. The legislators in California, already tilted to the Left, can readily take Justice Kennedy's language as their predicate: That language would now call into question any laws or constitutions that bar same-sex marriage. The legislators may simply declare now that the reasoning of the Court in Windsor must call into serious doubt the very standing of Proposition 8 as a part of the Constitution in California. They may proceed then to legislate again, as they were willing to legislate before, to establish and promote same-sex marriage.

Our friends in the National Organization of Marriage (NOM) could well be put out of business by the work that the Court today has completed. For what is the point any longer of these expensive, mobilizing campaigns to pass constitutional amendments on marriage if those constitutional amendments can be disposed of now, in a flick of the wrist, as litigants move into courts with friendly judges? Our friends at NOM may have to think anew on a strategic path once considered and long ago discarded: They may have to ponder again the use of Article V of the Constitution to amend the constitution on the appeal of two-thirds of the States. If we add the number of States that have constitutional amendments now to protect marriage, along with States that have resisted same-sex marriage in their laws, they would be more than enough to call for a constitutional convention to amend the Constitution on this subject.

But is there, within the Republican political class now, a figure who can articulate this issue and lead a movement to deal with this genuine crisis in our culture and our politics? Who is up to the task now of dealing with this crisis in the way that Lincoln dealt with that earlier crisis of the house divided? I'm not alone, I sense, in seeing no one on the scene to summon that wit and that nerve. But we will soon see the state of things, for we'll soon see just who among the Republicans comes forward to speak. In the meantime, others may be left to ponder the question, "Am I free now to marry one of my sons, or with the reasoning of the ACLU, would I be free now to marry both of them?"

But as we are swept in the moment, a certain historical and political point should not be overlooked: Anthony Kennedy was the consolation prize, the first Reagan nominee who could be confirmed for the Court after Robert Bork was derailed in that shameless set of hearings over confirmation. For that work, carried out brutally and cynically, we can thank the likes of Joe Biden and Ted Kennedy. But for Biden and the Democrats, Anthony Kennedy has turned out to be the Gift that Never Stops Giving. And he continues to yield his gifts to the remaking of our culture, even as Robert Bork has died.

Present at the Court today were families of the justices, as the Court reached the end of its work for the term. We had some familiar, fond hellos this morning. But as we passed out of the courtroom, at the end of the session, all quite amiable and civil, the sense was in the air that we were leaving the building to discover, in the crowds outside, a world quite altered. The culture war had taken a decisive, real turn.

Hadley Arkes is the Edward Ney Professor of Jurisprudence at Amherst College and a senior fellow at the Claremont Institute’s Center for Constitutional Jurisprudence.