In the First Things symposium on the Obergefell decision, Robert P. George quotes what John Ely said about Roe: “It is not constitutional law and gives almost no sense of an obligation to try to be.” First, let’s look briefly at Kennedy’s attempt, however wanting, at constitutional analysis. Second, let’s consider why Kennedy might think that what seems so transparently lacking in substantive constitutional argument can nonetheless pass muster.
Justice Kennedy claims that the right of same-sex couples to marry can be found in the due process clause of the 14th amendment. While the clear text of the clause does not support this reading, he argues that the “principles and traditions” of the Constitution and the Court’s precedents support such a reading. He specifically mentions four core principles and attempts to show how the Court’s precedents ground same-sex unions in those principles. First, he argues that the “right to personal choice regarding marriage is inherent in the concept of individual autonomy.” Second, the “right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.” Third, the “right to marry safeguards children and families.” Fourth, “marriage is a keystone of our social order.”
Same-sex couples, in Kennedy’s view, cannot be denied marriage, because the Court has shown that such denials are incompatible with the liberty of autonomous individuals (principle #1). Further, the Court has acknowledged that liberty includes privacy and intimate association, and marriage is the proper forum for the securing of those and similar goods (principle #2). And the centrality of marriage to the social order more broadly suggests that society ought to recognize the contributions of same-sex couples to that order and confer upon them the requisite benefits (principles #3 and #4).
The problem with Kennedy’s analysis, as pointed out by Chief Justice Roberts, is that it presumes what it intends to prove—none of the precedents it cites as supporting his principles, as they relate to same-sex marriage, is on point. As Roberts puts it, “the ‘right to marry’ cases stand for the important but limited proposition that particular restrictions on access to marriage as traditionally defined violates due process. These precedents say nothing at all about a right to make a State change its definition of marriage.” Similarly, in Roberts’ view, the privacy cases cited by Kennedy are also irrelevant to the question of same-sex marriage. Roberts points out the obvious: the petitioners are not seeking privacy, but “public recognition of their relationships.” Thus while the privacy cases might protect “the intimate conduct of same-sex couples,” they simply offer to support for striking down marriage laws.
What becomes clear in the Obergefell case is that Kennedy and the dissenters are simply talking past one another. The not-so-hidden premise of Kennedy’s reasoning—which grounds his logic and enables him to find support in precedent where none really exists—can be found in four quotations:
“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the 14th Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”
“It cannot be denied that this Court’s cases describing the right to marry presumed a relationship involving opposite-sex partners. The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.”
“The limitation of marriage to same-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.” (Emphasis added in all of the above.)
Kennedy here perfectly encapsulates the progressivism of late modern life. Liberty’s meaning is not static—it is only possible to learn its true meaning over time. We ought not to privilege the understandings of the past because those articulations were bound by certain limitations related to that time. Our understanding of liberty will necessarily improve if only we remain open to new meanings as they become manifest. Our liberation from past meanings is a good in and of itself.
Such a philosophy suggests human beings are not subject to the wisdom of the past, to natural law or right, or to revelation. We are not seekers—we find authority in our will at the present moment. It ought to be no surprise that “Truths” discovered in this manner tend to be unstable. Tomorrow comes rather quickly. Contemporary life is dominated by a strange combination of relativism and dogmatism. We can’t help but be overcome by instability and by the sense that old guides have been found wanting. So we grasp as firmly as possible onto the authority of the present moment and heap scorn on what we thought we knew. There is a deep connection between Kennedy’s reasoning and the way moral judgment has come to be exercised in everyday life. Chantal Delsol sees “a paradoxical superimposition of the cynic and self-appointed righter of wrongs—someone who engages in constant derision, devaluing everything, but at the same time decrees what is good and what is true with inspired self-assurance.”
A healthy and vibrant civic culture is not one that swings back and forth between fanaticism and relativism. A restoration of modesty in the face of eternal questions related to liberty and virtue is in order. This means respecting the wisdom of the past and having a sense of the difficulty of facing eternal questions. Such modesty does not mean bowing down to tradition as tradition. But it does mean having enough of a sense of our own insufficiency to consider many points of reference outside of ourselves and our own immediate experience.