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Phil-osophically Speaking - July 12, 2013

The Extreme Court

The Supreme Court’s ruling on DOMA (Defense of Marriage Act) did not come as a surprise, at least to me, but the court’s chutzpah never ceases to surprise. First the DOMA opinion, or specifically the majority decision written by Associate Justice Anthony Kennedy, is an intellectual mess. The court is overturning DOMA on narrow grounds based upon state rights. At the same the time the court says it won’t tolerate any laws that treat homosexuals differently than heterosexuals.

I can’t be the only one that perceives the cognitive dissonance of those two conflicting pronouncements. The decision by the Supreme Court was clearly more political than judicial in its reasoning and such thinking would be unrecognizable to those who crafted the Constitution. Does knowledge of that give any of these black-robed justices a moment’s hesitation; not by any vector that measures the lofty hubris that characterizes the majority decision. The Supreme Court has made some egregious decisions during its 225 year existence --- it legalized slavery in all states and defined the beginning of life through its own myopic moral prism. Unhappily, their latest adjudication, with respect to judicial reasoning, is in the same league with these other outrages.   

Just as appalling is the court’s extremism in depriving the self-governing power of the people. True, the court did not go as far as to state that same sex marriage is a constitutional right but you could hear the screeching brakes as they stopped just short of that glaring red light. Kennedy may have thought he was being clever in lightly dancing around that landmine; but in truth that brand of politicking had all the subtlety of a hand grenade. Under DOMA, the federal government does not recognize same sex marriage even in those states that have legalized it. If the majority of the court had justified its decision on the sole basis of federalism, that each state has the right to define marriage as it sees fit, then this decision would have marked a happy departure from Roe v. Wade, which brazenly discarded the moral preferences of the respective states and nationalized the right of abortion.

The majority decision in DOMA applied, however, another justification besides our federalist system of government. It introduced “equal protection” into the judicial equation. The question for the majority became why should only states that recognize gay marriage under the rubric of equal rights be held exclusively to this standard. Why should not states that do not recognize same sex marriage be subject to the same litmus test? It is this rationalization by the court and not the federalist perspective that will elide the democratic process and make gay marriage legal in all states by judicial fiat.

In the case before them, Kennedy and the majority (4 liberals deciding for the entire Republic) invalidated a legitimate judicial statute supported by the voters of California using broad strokes to paint opponents of same sex marriage as the incarnation of bigotry and intolerance. The court sought not to interpret the Constitution as written (God forbid) but through platitudinous hyperbole intended to eradicate the last taboo against gay marriage. This is not judicial reasoning that invites clarity; but a tactic designed to arrest dissent, stop argument and impose unquestioning conformity by psychological intimidation.

In a constitutional democracy the courts must accept the legitimacy of the choices the Legislature (the tribunal of the people) makes unless it is contrary to the Constitution. The court’s mission is not to manufacture new rights currying the favor of cultural and celebrity elites. George Orwell once asked who owns the future. The answer is now crystal clear: It’s the Supreme Court; for they’ve rudely snatched the most crucial moral issues from the hands of the electorate and placed it exclusively under their own jurisdiction. The historical insobriety of this moment is staggering insofar as it allows the democratic process to be hijacked by   dogmatic prescriptivists who have supplanted debate, a fair exchange of ideas and the process of discovery for a breviary of ersatz pieties that have only recently seen the light of day.

It is important to note that the openly gay journalist Jonathan Rauch called Justice Kennedy the best politician in America. This is a backhanded compliment at best, since the task of a jurist on the Supreme Court is to interpret the Constitution (which is absolutely silent on the right of gay marriage as it is of heterosexual marriage) not to politicize it. Every good politician knows that they cannot get too far ahead of public opinion which, admittedly, is veering strongly toward accepting gay marriage as a lifestyle with equal legitimacy with heterosexual unions. So Kennedy marched astride the noisy bandwagon of marriage equality, smoothing the path and clearing away obstructions, but stopping just short of giving it Constitutional benediction.

But the die has been cast and like a Johnny Appleseed, Kennedy has fertilized a teeming national acreage in order to harvest a brave new world that is not only rapidly approaching but in many respects has already hung out its shingle. Outside the subtle and nuanced legalities congenial to the homosexual lifestyle, no court verdict can ever change the physiological and physical differences between men and women, for their complementarity to each other is obvious and it’s perfectly natural that the law should flatter this reciprocity. It’s a sempiternal truth, as the ancients well knew, that wisdom never contradicts nature. If laws against same sex marriage cannot be sustained simply because it is a matter of personal choice, than neither can the laws against pornography, polygamy and prostitution. To eviscerate the connective tissue of tradition that binds one generation to another, as our culture is impetuously and without much forethought, means credence will ultimately be given to every sort of consensual association where every arrangement will be sanctified before the altar of human equality.

Not only has the nexus of our communion with patrimony been savagely severed for the novelty of same sex marriage but its long term consequences cannot be fully seen or realized. Conceit rendezvous with folly.  A community is not merely a physical entity with bones, sinews and muscles; it’s a spiritual force that breathes life. No matter how far back in time you go, you’ll find the nuclear family immemorially entrenched. We can pretend that a genderless marriage does not harm children; but do we really believe it? Will history and sociology bear us out? Now even our right to vote upon this revolution, for it is nothing short of that, is being seized and those who cavil over it are being browbeaten as bigots and haters. Kennedy opening the door to nationalization reminded me of the public reaction toward Henrik Ibsen’s play The Doll House when it first opened in 1879. When Nora shockingly leaves her husband and children for the purpose of discovering herself, the play ends with Nora slamming the door behind her. It’s been said that all of Europe heard that door slam as if something inviolable and permanent had vanished with that painfully audible sound. I’m getting the same uneasy feeling when Kennedy slammed that same door on the democratic process.