No president ever appointed Stuart Schneiderman to the Supreme Court, but he still has no difficulty in eviscerating Anthony Kennedy’s opinion.
Justice Kennedyâ€™s opened his opinion with the following stirring statement:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
The notion that individuals are free to define and express their identities is pop psychology and postmodern critical theory. More accurately, itâ€™s mental drool.
When Kennedy added a few more freedoms to marriage, he went further off the rails of rational thought:
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.
One expects better of the Supreme Court. In truth, freedom comes in many different shapes and forms. Free love is not the same as free will. Freedom from responsibility is not the same as freedom for responsibility. Free will is not the same as free lunch. And, of course, free expression and the free trade in ideas do not constitute a free-for-all.
By extending the concept of freedom indiscriminately Justice Kennedy has sowed confusion.
As for Kennedyâ€™s musing about pop psychology, itâ€™s one thing to say that marriage has evolved to include the possibility that a couple be in love. Itâ€™s quite another to say that the â€œnature of marriageâ€ is to grant access to a freedom for intimacy and spirituality. In truth, Scalia pointed out, marriage circumscribes and restricts your access to intimacy. It limits your freedom to covet your neighbor and to commit adultery. …
Kennedyâ€™s idea makes no sense within the context of gay marriage. If gays were free to create themselves as they wished they could recreate themselves as straights.
Admittedly, some people who are involved in homosexual activities are not, strictly speaking, gay, but homosexuality, nearly everyone will agree, is not a choice. It is a natural predisposition.
If Kennedy meant that gays should be allowed to define themselves as straight, thus, to marry as though they were straight he was suggesting that gay relationships, those that differ from socially recognized marriages, are somehow inferior to marriage.
One notes that Kennedy also mentioned, rather mindlessly, that the alternative to marriage was loneliness.
In fact, once you enter into the marital institution that institution defines and delimits your relationship. Those who have avoided entering into the institution of marriage have done so in order to gain a greater liberty in defining their relationship. Feminists, for example, have insisted that marriage is an oppressive institution, one that would unduly constrain the exercise of their freedom.
Dare we mention the obvious point, that a married couple is not free to change the definition of their marriage without passing through a judicial process called divorce.
Kennedy seems to have granted us the liberty to take liberties with reality.
One ought to note that the Supreme Court decision has not transformed reality. It has changed the way that certain couples are treated â€œin the eyes of the law.â€ The law can confer dignity and it can deny dignity, but it is not the only arbiter of the way dignity is conferred or denied.