Justice Kennedy’s Too-Late Lament for Tolerance

By | 2017-06-02T18:30:05+00:00 December 22, 2017|
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I have been silent about Masterpiece Cakeshop v. Colorado Civil Rights Commission, not because I lack interest in the case, but because it has already generated extensive commentary here and throughout the commentariat. Court watchers, like fortune tellers reading tea leaves, speculate how the justices will line up, with Justice Anthony Kennedy likely casting the swing vote in favor or against the Colorado baker, Jack Phillips, who declined for religious reasons to create a gay wedding cake.

Which side will win? Flip a coin. It is notoriously difficult to predict with which four-justice bloc the mercurial Kennedy will align himself in any particular case, although it is almost certain that he will be in the majority.

Two things prompt me to weigh in: Justice Kennedy’s odd comments at oral argument, and a recent visit my wife and I took to southern Utah (about which later).

The December 5 oral argument got my attention when Kennedy sharply questioned Colorado Solicitor General Frederick Yarger about a statement made by a member of the state agency that ruled in favor of the same-sex couple who filed the discrimination complaint against Phillips. Kennedy demanded to know whether Yarger “disavowed or disapproved of” the statement by commissioner Heidi Hess (an LGBT advocate) that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.”

Kennedy followed up with the widely reported comment that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual.” Apparently referring to commissioner Hess’ “despicable” statement, Kennedy continued: “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” It’s an odd comment because Kennedy has done more than any other justice to marginalize Americans’ moral and religious objections to homosexuality. Kennedy’s stated concern about intolerance towards Christians who oppose same-sex marriage rings hollow.

Does Kennedy Remember His Own Opinions?
In Romer v. Evans (1996), Kennedy authored a 6-3 opinion striking down an amendment to Colorado’s state constitution (enacted by the voters as an initiative dubbed “Amendment 2”), which would have prevented local governments from recognizing LGBT orientation as a “protected class.” Any such protections would have to be granted by state law. Led by Kennedy, the majority in Romer held that the voters’ denial of local control over sexual orientation discrimination lacked a rational basis.

Kennedy’s opinion held that “the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests.” Opposition to locally-granted homosexual rights, in other words, is irrational: arbitrary, baseless, unworthy of respect. Moral disapproval is the same as naked “animus.”

Kennedy rejected the contention that Colorado voters were justified in denying local governments the ability to grant special rights to homosexuals:

The primary rationale the State offers for Amendment 2 is respect for other citizens’ freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. (Emphasis added.)

In dissent, Justice Antonin Scalia accused the majority of mistaking “a Kulturkampf for a fit of spite,” and chastised his colleagues for imposing their elite views on “seemingly tolerant Coloradans” by prohibiting the voters’ “modest attempt…to preserve traditional sexual mores against the efforts of a politically powerful minority to revise those mores through use of the laws.”

Romer was the first step in the long road to Obergefell, every step of which was paved with Kennedy’s smug disdain for bourgeois morality.

‘Due Process’ Clause as Cudgel
The next step came in
Lawrence v. Texas (2003), where the court, in another 6-3 opinion written by Kennedy, overturned Bowers v. Hardwick (1986) and recognized a fundamental due process right to engage in homosexual sodomy, declaring a Texas statute unconstitutional in the process. The court acknowledged, but ultimately disregarded, the traditional condemnation of homosexual conduct as immoral, based on “religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family,” which “[f]or many persons… are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives.”

Nevertheless, Kennedy’s opinion concluded, society’s majoritarian belief that a particular practice is immoral is not a sufficient basis to uphold a law prohibiting that practice. Rather, despite any specific constitutional protection, consenting adults “are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government . . . The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” (Emphasis added.)

Scalia’s dissent in Lawrence vigorously disputed the majority’s disregard of conventional morality as a basis for lawmaking:

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable,” [quoting Bowers]—the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion . . . This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review. (Emphasis in original.)

Many observers concluded that recognition of a right to same-sex marriage was inevitable after Lawrence, as indeed it was 12 years later by a 5-4 vote in Obergefell v. Hodges (2015), when—in yet another Kennedy opinion—millennia of Judeo-Christian norms were overruled by judicial fiat, what Scalia in dissent termed a “Putsch.” The notion that marriage is a union between one man and one woman—a view that Kennedy conceded “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world,” was trumped by five unelected justices’ mystical insights into what the invisible ink of the Constitution requires to ensure “individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Whatever that means.

The invented “right” to same-sex marriage is now in direct conflict with Jack Phillips’ real First Amendment rights, a predictable dilemma that was anticipated in Chief Justice John Roberts’ dissent in Obergefell. Justice Samuel Alito’s separate dissent foresaw that the majority’s opinion “will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women…. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.” Thus, commissioner Hess’ “despicable” statement was a logical reaction to Kennedy’s jurisprudential handiwork. You reap what you sow.

What Does Polygamy Have to Do With It?
Which brings me to my recent visit to southern Utah. Scalia’s
Lawrence dissent didn’t mention polygamy, but it might have. Polygamy—usually understood as consisting of a man taking multiple wives—is common in some cultures, but has always been outlawed in the United States. Currently, all 50 states have laws forbidding the practice.

Yet, prior to the Mormon church’s renunciation of “plural marriage” in 1890, polygamy was openly practiced by church adherents in what was then the Utah Territory. To this day, fundamentalist offshoots of the LDS church, and other fringe sects, continue to practice polygamy, primarily in parts of Utah and Arizona. It is estimated that 30,000 people live in polygamous communities in Utah; my wife and I saw some, who dress in distinctive Amish-style clothing, while we were in Panquitch, Utah.

Due to Americans’ abhorrence of polygamy, which was regarded as a relic of barbarism, Utah was denied statehood until 1896, after the Mormon church renounced the practice and the proposed state constitution banned the practice. The nation’s ban on polygamy is based on moral disapproval, just as were the prohibitions of homosexual sodomy and same-sex marriage overturned in Lawrence and Obergefell.

Many “consenting adults” living in Utah and Arizona are now denied legal recognition for their plural marriages, just as gay couples were denied legal status prior to 2015. On what principled basis would the majority in Obergefell refuse to extend the newly-minted right of non-traditional marriage to polygamous celebrants?
Kennedy undoubtedly regards his odyssey from Romer to Obergefell as an exemplar of tolerance, but it was actually an assault on the Constitution, democracy, and traditional moral values—producing not justice, but only chaos and incoherence.

If Obergefell has weaponized anti-religious bigotry, Kennedy has no one but himself to blame.

About the Author:

Mark Pulliam
Mark Pulliam is a lawyer and commentator who fled California and now lives in Austin, Texas. He is a contributing editor at the Library of Law and Liberty.
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17 Comments

  1. ahad_ha_amoratsim December 22, 2017 at 11:57 am

    Quite so, sir.
    And at what point will recognition of polygynyous marriage be demanded, not out of respect for LDS (whom it is still fashionable to ridicule), but as a demonstration of tolerance for Muslims immigrating to the US from societies where those marriages are commonplace?

  2. Dansidea December 22, 2017 at 12:37 pm

    Maybe…just maybe … these “progressive elites” and shriekers are figuring out just how far they have pushed their hypocrisy? Polygamy and homophobia is okay if you are Muslim but not Christian? AND if the baker was any race other than White or Asian the state progressives would never have pushed it this far because the cognitive dissonance would have been too much even for them and you Justice.

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    • Arlo Falconbrook December 25, 2017 at 5:37 pm

      Unfortunately those types of progressives believe that the ability to hold 2 contradictory and mutually exclusive ideas in your head at the same time is evidence of profound sophistication bordering on genius.

      Like NeverTrumpers there will be no back down or admissions against interest from them. For them the only strategy is “Full speed ahead! Damn the torpedoes!” and they will go down railing against the night.

      But that’s OK. I kind of feel that way about DJT’s nascent agenda. You have to have values and be prepared to fight for them even to the end. That is why, for myself, I don’t see why every conflict or problem can only be resolved where all parties are part of the solution.

      At the end of WW2 nobody got upset that there was no “accommodation” of the Nazis in the final washup. They lost and their continuance was incompatible with a sensible future so they were never part of the discussion. I think that is probably true of the middle east as well. You don’t accommodate Isis or indeed any Islamic nutjobs if you want a future (which the smarter heads in Saudi Arabia have finally realized it seems). So I think “2 state solutions” are inherently looney as well if the continued existence of the parties in the same space is mutually exclusive.

      In the end, in the cultural wars of today (as in the physical turf wars of the recent past) one side must prevail and vanquish (at least ideologically) the other and that is the only way forward if one wants to arrest (and reverse) the destruction and rejection of Judeo-Christian values in the West.

  3. gabe December 22, 2017 at 2:43 pm

    Mark:

    Good essay! You hit it on the head; it is the disdain for morality that has a) brought us to our current situation b) enables / engenders these “all-too-clever” judicial pronouncements and c) will soon lead us to a world where first polygamy will be deemed to be constitutionally protected, followed, not long thereafter, by petitions by the North American Man Boy Love Association to recognize and protect these perverts right to pursue happiness by diddling little boys.

    We see that in England and some Scandinavian countries the authorities have recognized marriages between a woman and her German shepherd, a woman and “herself”. Without a limiting principle such as “morality” there is no end in sight as the broad, but not necessarily *ambiguous* textual guarantees of COTUS, may be stretched beyond the recognition of those who drafted that text.

    Not to fear, boyos, after all, we have all our BlackRobed Guardians to inform us, the ignorant mass of misanthropic homophobes, of what is proper.

  4. Doctor Bass Monkey December 22, 2017 at 3:06 pm

    Once the moral basis is removed, there’s no reason to oppose polygamy, incest, or statutory rape (after all, the age of consent is completely arbitrary as seen by how it differs from state to state). This is what happens when emotionalism is the basis of a judicial ruling instead of reason.

  5. Dbom December 22, 2017 at 3:55 pm

    Man, what would it feel like to live in a world where ONE UNELECTED DUDE gets to decide so much IMPORTANT crap for the rest of us???

    Wait, oh yeah, that’s now.

    And sucks…

    So much for consent of the governed.

    We just live in Anthony Kennedy’s world, and he’s the boss I guess.

    • Brother John the Deplorable December 24, 2017 at 5:57 am

      This is what happens when we get told that there are two “wings” of the court and a “swing vote,” instead of four people who will probably do their jobs properly, four who definitely won’t, and one who doesn’t know what it is.

  6. ek ErilaR December 22, 2017 at 3:55 pm

    Anthony Kennedy, like Souter, Brennan, Warren, Roberts and many others, is a buffoon appointed and confirmed by GOP buffoons.

    The only thing to do with Supreme Court is to limit it to its original jurisdiction.

  7. Henry Lee December 23, 2017 at 10:32 am

    “almost certain he will be in the majority”. Of course he is. On a 4-4 court, he makes one or the other minorities the majority.

  8. CM DeNeve December 23, 2017 at 1:06 pm

    Great article. Hopefully Kennedy will course correct and do the right thing here. There is some dicta in Obergefell that makes me hopeful.

  9. USInfidelPorkEater December 23, 2017 at 7:15 pm

    This just goes to show if you have no use for morality, no laws are needed, everything is allowed. Satan is its name.

  10. tanner vang December 24, 2017 at 3:18 am

    Once the moral basis is removed, there’s no reason to oppose polygamy, incest, or statutory rape (after all, the age of consent is completely arbitrary as seen by how it differs from state to state). This is what happens when emotionalism is the basis of a judicial ruling instead of reason.

  11. majorlobon December 25, 2017 at 5:01 pm

    Mark:Good essay! You hit it on the head; it is the disdain for morality that has a) brought us to our current situation b) enables / engenders these “all-too-clever” judicial pronouncements and c) will soon lead us to a world where first polygamy will be deemed to be constitutionally protected, followed, not long thereafter, by petitions by the North American Man Boy Love Association to recognize and protect these perverts right to pursue happiness by diddling little boys

  12. DejaniArlinda December 25, 2017 at 9:51 pm

    Man, what would it feel like to live in a world where ONE UNELECTED DUDE gets to decide so much IMPORTANT crap for the rest of us???Wait, oh yeah, that’s now.And sucks…So much for consent of the governed.We just live in Anthony Kennedy’s world, and he’s the boss I guess.

Comments are closed.