What Difference Does It Make? Do Words, Facts, History, Truth, Law, or Morals Matter? Part 2

One of the main purposes of this blog is to help us understand our culture, and particularly, the cultural biases and pressures that tend to shape our perception of reality.  This post, and the last one, are my attempts to understand one aspect of what is going on in our culture, at least in the United States, and how it affects our thinking and action.  My interest, for the purposes of this blog, is how it affects our thinking about the origin, nature, and role of civil society as broadly understood, and the standards by which we understand issues of integrity and accountability.

I remember well when the U.S. Supreme Court decided Romer v. Evans in 1996.  The Supreme Court had previously held in Bowers v. Hardwick that the Georgia law which criminalized certain homosexual acts was constitutional. Then, in 1996, the Supreme Court invalidated a Colorado State amendment to its constitution which sought to foreclose any branch or political subdivision of the State from protecting persons against discrimination based on sexual orientation and specifically overruled Bowers v. Hardwick.

One reason I remember this decision so well was that a good friend came to me shortly after the Supreme Court issued its decision and suggested that this decision portended a more significant change to America than Roe v. Wade, the decision that essentially legalized abortion subject to certain caveats.

As I mentioned at the beginning of my last post, my discussion here addresses several major decisions of the U. S. Supreme Court which seem to have a teutonic effect on the thought and lives of many in America.  However, the implications extend far beyond the immediate subject matter of these decisions of the last few weeks, and while local, that is, pertaining to the United States, the principles have potential world-wide application.

In my last post, I focused my attention on the use and what I suggested was the corruption of language. My attention here is my attempt to address what I have understood to be the very foundations of law, or at least some of the theoretical and philosophical underpinning of legal thought.  Many years ago during a lecture I presented, I argued that differences among judges were not so much based on differences in determining the facts in given cases, or differences in determining the applicable law, including precedent, and how it was to be interpreted.  Rather, the differences among judges, and Supreme Court justices in particular, occurred because of their lack of consensus on the very core of legal thought.  It is this issue which draws my attention here.

It is also important that I note for the record that although I am a lawyer, I am not a lawyer who has specialized in Constitutional law.  I leave any constitutional analysis to those who live with the Constitution on a daily basis, whether in courts, the classroom, or in constitutional litigation.  My facility with this area of law is rudimentary at best, so I do not speak as an expert on matters relating to the Constitution.  My interests have always been jurisprudential and how various worldviews inform our thinking about law and its place in society.  Nevertheless!

I don't deny, as Justice Kennedy wrote in Obergefell v. Hodges, that "[T]he identification and protection of fundamental rights is an enduring part of the judicial duty to interpret the Constitution." However, as I think back on what President Lincoln and others through history have said, I am not convinced that the Supreme Court is the only body capable of interpreting the Constitution, notwithstanding the language in Marbury v. Madison (1803), which is established law to the effect that it is the province and  duty of the judiciary to say what the law is, and where there is a conflict between legislation and the U.S. Constitution, the Constitution prevails.  The problems often occur with language, such as "due process," and "equal protection," which seem broad and to many, ambiguous.

But, I think some humility is in order, that sometimes we get it right, but often we get it wrong.  For lower courts, that is one reason we have appellate courts.  Although the Supreme Court and lower courts, and  for that matter most courts, follow their own precedents and those of higher courts within their appellate chain, they do change their minds on what the Constitution says, or at least as interpreted by them in the past.   Indeed, as describe above and herein, that is exactly what the Supreme Court did in Romer v.  Evans when it overruled Bowers v. Hardwick.

And as Justice Scalia warned in his dissent, "the stuff contained in today's opinion [Obergefell v. Hodges] has to diminish this Court's reputation for clear thinking and sober analysis.

Well, on 26 June 2015, the Supreme Court issued its opinion and decision in Obergefell v. Hodges. While for many, this decision was not unexpected in light of a series of earlier decision over the last 20 years, it still came as a shock to those who are committed to the democratic process and to the words of the U.S. Constitution.

Justice Kennedy, writing for the majority, stated:

     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.

By way of background, the cases before the Court come from Michigan, Kentucky, Ohio, and Tennessee, all States which defined marriage as a union between one man and one woman.  The Court was faced with two issues, each one related to the cases decided by the lower court.  First, does the Fourteenth Amendment to the Constitution require a State to issue a marriage license to two people of the same sex?  Second, does the Fourteenth Amendment require a State to recognize a same-sex marriage licensed and performed in another state which does not grant that right?  Justice Kennedy opined that numerous same-sex marriage cases have reached the Courts of Appeals in "recent" years and the courts have written a substantial body of law that now helps the U. S. Supreme Court explain and formulate the underlying principles regarding marriage.

How that works, I am not sure, since the Supreme Court does not usually take its cue from lower courts. Moreover, to the extent that these cases are in someway constitutionally based, it would seem that the principles would emanate from the relevant Constitutional provisions rather than the substantial body of law developed in the lower courts regarding marriage that would help the U.S. Supreme Court explain and formulate underlying principles regarding marriage.  It might be helpful to recognize that this "substantial body of law" did not simply arise out of some ether.  The Supreme Court, and especially Justice Kennedy writing for various majorities, took the lead in its early decisions regarding same-sex relationships, which opened the door to the Courts of Appeals, to extend those holdings invalidating the democratically established laws in the various states.

As noted by Justice Kennedy: "After years of litigation, legislation, referenda, and discussions that attended these public acts, the States are now divided on the issue of same-sex marriage."  But, that is the stuff of democracy and our federal political system, and impatience with democracy and consensus is a bit unseemly, if not unconstitutional.  Of course the states are divided because they have been deprived of the democratic processes through which change is made, particularly after the Supreme Court invalidated State laws regarding same-sex relations, and invalidated much of the Defense of Marriage Act which was passed overwhelmingly in Congress and signed into law by President Clinton. What is less clear in Justice Kennedy's opinion is how he thinks we got to this state of affairs.

As this map of the United States shows, prior to the Supreme Court's ruling in Obergefell v. Hodges, only thirteen States and the District of Columbia had approved same-sex marriage by legislation or referenda, such as ballot initiatives or amendments to the States' Constitutions. Twenty-five States had bans against same-sex marriage overturned by court decisions.  As of the date of the Obergefell decision, thirteen States still defined marriage as between a man and a woman.

Notwithstanding this, the Court held that the right to marry is a fundamental right, inherent in the liberty of a person, and that under the Due Process and Equal Protection Clauses of the Fourteenth Amendment same sex couples may not be deprived of the right to that liberty and the right marry.

But, first, what Justice Kennedy said, we can embrace, no matter our views on the outcome.  Justice Kennedy, and the members of the majority specifically acknowledged and stated that marriage "has existed for millennia and across civilitzations."  Moreover, the majority acknowledged that "the Court explained two Terms ago, 'that until recent years, . . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.'"

Indeed, he wrote, that:

     It cannot be denied that this Court's cases developing the right to marry presumed a relationship between opposite-sex partners.  The Court, like many institutions, has made assumptions defined by the world and time of which it is a part.

* * *

. . . the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals.

* * *

Marriage also affords the permanency and stability important to children's best interests.

Quoting Alexis de Tocqueville from his Democracy in America, Justice Kennedy continues:

There is certainly no country in the world where the tie of marriage is so much respected as in America . . . [W]hen the American retires from the turmoil of public life to the bosom of his family, he finds in it the image of order and peace. . . . . He afterwards carries [that image] with him into public affairs.

Here, Justice Kennedy explained that the Court echoed Tocqueville, explaining that marriage is "the foundation of the family and of society, without which there would be neither civilization nor progress."  I think most of us can agree with that.  What was missing was context and Tocqueville's observations regarding civil society in America.  Tocqueville continued immediately after the quote attributed to him by Justice Kennedy saying: "In the United States, religion regulates not only the mores; it extends its dominion to the mind."  According to Tocqueville's margin notes in his original writing of Democracy in America, "American liberty was born in the bosom of religion and is still sustained in its arms."

In his dissent, the Chief Justice wrote:

     This universal definition of marriage as the union of a man and a woman is of no historical coincidence.  Marriage did not come about as a result of a political movement, discovery, disease, war, religious doctrine, or any other moving force of world history - and certainly not as a result of a prehistoric decision to exclude gays and lesbians.  It arose in the nature of things to meet a vital need: ensuring that children are conceived by a mother and father committed to raising children in the stable conditions of a lifelong relationship. . . .  ("For since the reproductive instinct is by nature's gift the common possession of all living creatures, the first bond of union is between husband and wife; the next, that between parents an children; then we find one home, with everything in common.")[Emphasis added]

* * *

     Society has recognized that bond as marriage.  And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without.  . . .  "Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve."

     This singular understanding of marriage has prevailed in the United States throughout our history.  The majority accepts that at "the time of the Nations founding [marriage] was understood to be a voluntary contract between a man and a woman. . . . .

      The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with "the whole subject of domestic relations of husband and wife."  . . .  There is no dispute that every State at the founding - and every State throughout our history until a dozen years ago - defined marriage in a traditional, biologically rooted way.  The four States in these cases are typical.  Their laws, before and after statehood, have treated marriage as the union of a man and a woman.

So what changed?

According to Justice Kennedy, the majority observed changes and developments in marriage to be not merely superficial, but rather "deep transformations in its structure."  The changes Justice Kennedy referred to related to arranged marriages giving way to pairings based on romantic love, racial restrictions on marriage removed, and where husbands and wives were recognized separately rather than as a single legal entity.  Whether or not these changes in how marriage was viewed in society were transformative as stated by Justice Kennedy, they did not change the basic structure of marriage as it was recognized throughout the millennia and across civilizations.

Moreover, as Justice Kennedy observed, a greater number of gays and lesbians began living openly

together, and expressing the desire to have their relationships recognized as marriages.  The Majority recognized that over the last few years, public opinion on marriage had shifted rapidly, in no small part due to the decisions of the U.S. Supreme Court, and those specifically written by Justice Kennedy and increasing public acceptance of what the Supreme Court had legitimized.  It was noteworthy that the majority did acknowledge that as of 2012, voters and legislatures in eleven States and the District of Columbia changed their definition of marriage to include same-sex couples.  What about the other 39 States that did not change their definition of marriage through democratic and legislative means?

The majority attempts to justify its position regarding this new right protected by the U. S. Constitution, on the basis of four "premises" articulated under the "Due Process Clause" and the "Equal Protection Clause" of the Fourteenth Amendment.  First, there is a right to personal choice regarding marriage which 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, marriage safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education as a central liberty provided by the Due Process Clause.  Fourth, our Nation's traditions make it clear that marriage is a keystone of our social order. What was significantly missing was some logical and legally acceptable rationale for the majority's conclusions.

Justice Kennedy, in advancing his point that the "right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals," wrote:

The right to marry thus dignifies couples who "wish to define themselves by their commitment to each other." . . . Marriage responds to that universal fear that a lonely person might call out only to find no one there.  It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.

As one observer noted, this sounds like "the cry of a lonely and frustrated 10-year old girl rather than legal reasoning one would expect from the U.S. Supreme Court when advancing some Constitutional theory of due process."

The dissent noted that the petitioners in this case did not rely on a violation of an enumerated constitutional right, since of course, none existed; there being no right of "Companionship and Understanding" or "Nobility and Dignity" clause in the Constitution.  Rather they relied on what the Court called a "most sensitive category of constitutional adjudication," that is, substantive due process under the Fourteenth Amendment under which some liberties are "so rooted in the traditions and conscience of our people as to be ranked as fundamental."  Yet, the majority seemed to ignore those traditions and the consciences of our people over the centuries and all people over many millennia and across civilizations when it redefined marriage.

The Chief Justice, in his dissent, stated that "allowing unelected federal judges to select which unenumerated rights rank as fundamental - and to strike down state laws on the basis of that determination - raises obvious concerns about the judicial role."  Apparently not obvious enough to the majority.

The crux of the decision was stated clearly by the Chief Justice in his dissent when he wrote:

     The majority's driving themes are that marriage is desirable and petitioners desire it. The opinion describes the "transcendent importance" of marriage and repeatedly insists that petitioners do not seek to "demean," devalue," "denigrate," or "disrespect" the institution.

Maybe not, although the agenda of the LGBT movement one reads about in the news media suggests otherwise.

Former Supreme Court Justice, Benjamin N. Cardozo, wrote in a classic little volume, The Nature of the Judicial Process," regarding the work of judges as they decide cases: 

What is it that I do when I decide a case?  To what sources of information to appeal for guidance.  In what proportions do I permit them to contribute to the result?  In what proportions ought they to contribute?  . . . If I am seeking logical consistency, the symmetry of legal structure, how far to I seek it?  At what point shall the quest be halted by some discrepant custom,by some consideration of social welfare, by my own or some common standards of justice and morals?  . . .  Some principle, however, unavowed and inarticulate and subconscious, has regulated the infusion .  It may not be the same principle for all judges at any time, nor the same principle for any judge at all times. . . . It is often though these subconscious forces, judges are kept consistent with themselves, and inconsistent with one another.

Before addressing what Justice Cardozo argued approximately 90 years ago, and how we might understand the majority's opinion, there are several questions I would like to raise that seem quite pertinent.

1.  Has society the right to pass judgment at all on matters of morals?  Ought there, in other words, to be a public morality, or are morals always a matter for private judgment?

2.  Second, if society has the right to pass such judgment, has it the right to use the weapon of law to enforce it?

3.  Third, if so, ought it to use that weapon in all cases or only in some; and if only in some, on what principles should it distinguish?

4.  Fourth, moral knowledge is knowledge about what?  Once that is answered, we face the epistemological question; that is, how is moral knowledge achieved?  And if that is answered, we face the question of motivation, that is, the reason, if any, one has to take an interest in, or care about moral knowledge.

There are some words of caution in the celebration of the Court's opinion in Obergefell v. Hodges. Indeed, the President had the White House lit in rainbow colors celebrating the decision, and tweeted that "Justice arrived like 'a thunderbolt,'" and "#Love Wins."  In a statement issued by the White House,

Tonight, the White House was lit to demonstrate our unwavering commitment to progress and equality, here in America and around the world. The pride colors reflect the diversity of the LGBT community, and tonight, these colors celebrate a new chapter in the history of American civil rights.

Yet, one week after the Obergefell v. Hodges decision was issued, Professor Jonathan Turley of George Washington University School of Law writing in the Washington Post, admitted that he had long advocated same-sex marriage and was "deeply moved" by this historic ruling.  Indeed, what Professor Turley admitted was that he agreed with Justice Scalia's dissent in the Lawrence v. Texas case [which I will discuss shortly] that this "signaled the end of all morals legislation," something for which Professor Turley and others had argued.

Of course, no legislation or court decision is moral free.  The question is, as posed above, whose morality will control.  Indeed, how does the legislature or court distinguish between the various moralities and on what principles does it focus when it decides which it must choose to follow?

But, while Justice Kennedy's opinion might be celebrated in some precincts, when he called for the "dignity" and profound hopes and aspirations of many loving couples, there were matters of concern.  For the "use of a dignity right as a vehicle presents a new, unexpected element since it may exist in tension with the right to free speech or free exercise of religion."  Of course, this is not the first time he has written about dignity.  For example, in Planned Parenthood of Southeastern Pa, v. Casey, Justice Kennedy wrote:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.  Our cases recognize "the right of the individual, married or single, to be free from unwarranted government intrusion into matters so fundamentally affecting a person's the decision whether to bear or beget a child."  Our precedents "have respected the private realm of family life which the state cannot enter."  These matters, involving the most intimate and personal choices a person can make in a lifetime, choices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment.  At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of the human life.  Beliefs about these matters could not define the attributes of personhood where they formed under compulsion by the State. [Emphasis in the original]

Oh my!

The late Judge Robert Bork called this phrase regarding the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of the human life, indicative of "New Age jurisprudence."  Attorney Robert Bennett described it as an "open-ended validation of subjectivism."

Professor Turley argued that there are dangers lurking in Obergefell decision, and that the celebrations may be short-lived,  Noting that Justice Kennedy used the word, "dignity" almost a dozen times in his opinion for the majority, Professor Turley wrote:

     Dignity is a rather elusive and malleable concept compared with more concrete qualities such as race and sex.  Which relationships are sufficiently dignified to warrant protection?  What about couples who do not wish to marry but cohabitate?  What about polyamorous families, who are less well accepted by public opinion, but are no less exemplary when it comes to, in Kennedy's words on marriage, the highest ideals of love, fidelity, devotion, sacrifice, and family?  The justice does not specify.  It certainly appears as if Obergefell extends this protection because same-sex unions are now deemed acceptable by the majority.  [I am a bit skeptical of this conclusion based on polls because of the push/pull nature of much of the poling and its selectivity, as well as the way the questions are worded.  But, even so, while polling may suggest what a select group of people think, it has little place in determining truth or reality.]  The courts may not be so readily inclined to find that other relationships are, to quote the opinion, a "keystone of the Nation's social order," when they take less-orthodox forms.  But, popularity hardly seems like a proper legal guide to whether a relationship is dignified.

     With the emergence of this new right, we must now determine how it is to be balanced against other rights and how far it extends.  For example, it is clearly undignified for a gay couple to be denied a wedding cake with a homosexual theme. Yet, for a Christian or Muslin baker, it might also feel undignified to be forced to prepare an image celebrating same-sex marriage.  Should the right to dignity trump free speech or free exercise [of religion]?

     Other groups outside the lesbian, gay, bisexual, and transgender community could invoke this precedent, since the reasoning does not concern a protected sexual-orientation class, but rather a citizen's right to dignity.  Could employees challenge workplace dress codes as intruding on their right to "define and express their identity"? Could those subject to college admission preferences raise claims that race or gender classifications deny their individual effort to "define and express their identity"?

* * *

. . . But if we are to protect the dignity of all citizens, we need to be careful that dignity is not simply a new way for the majority to decide who belongs and who does not belong in our "Nation's social order." 

Thinking about what Justice Cardozo wrote so many years ago, has prompted me to return once again to postmodernity and its effect on how we think about the world and life, and indeed, the perhaps powerful effect it had on the reasoning of the Court in a series of cases culminating in the Obergefell v. Hodges decision.

Modernity alters the day-to-day social life and undercuts the traditional beliefs, habits, and customs. One of its most distinctive features is an increasing interconnectedness between two extremes; namely extensionality and intentionality.  There are globalizing influences on one hand, and personal dispositions on the other.  It is a post-traditional order, but not one which replaces the sureties of tradition and habit with the certitude of rational knowledge as suggested in the Enlightenment.

As I wrote in my last post, modernity institutionalizes the principle of radical doubt and insists that all knowledge takes the form of hypotheses.  Claims which may very well be true, are in principle are always open to revision, and may have to be abandoned at some point.  Relationships exist solely for whatever rewards the relationship can deliver.  Trust is no longer anchored in criteria outside the relationship itself, such as, kinship, social duty, or traditional obligation.

Where there is no truth, except the proposition that there is no truth, and where ideas of an individual may be in flux, interesting, creative, and even important for that individual, these ideas can no longer be rejected on the basis of some exclusive truth claims.  Since ideas cannot be rejected, the individual or group making the truth claims is marginalized and ultimately rejected as narrow-minded, bigoted, extreme, or an out of date traditionalist.  This results in repression of moral questions which day-to-day life pose, but which are denied answers.

With all of this, there is a growing importance of a "new thinking class," with some undesirable consequences.  Expert knowledge is pursued as an end in itself.  Specialized knowledge, which can only be understood by other specialists, creates a gap between the experts and ordinary people. Justice Kennedy wrote in his majority opinion that:

Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises and neither they or their beliefs are disparaged here.  But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequences is to put the imprimatur of the State itself on the exclusion that soon demeans or stigmatizes those whose liberty is then denied.

* * *

     Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocated with utmost, sincere conviction that, by divine precepts, same-sex marriages should not be condoned.  The First Amendment ensures that religious organizations and persons are given protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.

Several observations might be appropriate.  First, I know as a judge and to my embarrassment, that there is a tendency to rely on precedents that I have written.  In a way, it is kind of lazy to start one's research and writing this way, but we seem to do it all the time and it is time saving while providing some level of consistency.  Justice Kennedy has done it here in Obergefell v. Hodges, because the very specific decisions he relied on were his decisions which overturned State laws addressing certain homosexual conduct, and his incremental approach to requiring same-sex marriage to approved in all of the States.

But, one of the things that I have found helpful over the years is contained in this gem of wisdom Justice Cardozo addressed in his book, The Nature of the Judicial Process.  Even in times of exploding litigation and the need to try and decide cases, it is important for members of the judiciary, including Justices on the Supreme Court, to reflect on, and examine "inherited instincts, traditional beliefs, acquired convictions, and the resultant outlook on life. a conception of social needs, a sense in [William] Jame's. phrase of 'the total push and pull of the cosmos' which, when reasons are nicely balanced, must determine where the choice shall fall."

In any event, he begins with Bowers v. Hardwick (a 1986 5-4 decision, with majority opinion written by Justice White), in which the U.S. Supreme Court upheld the constitutionality of a Georgia law deemed to criminalize certain homosexual acts.  At that time, most States had anti-sodomy laws.  He then cites his opinion in Romer v. Evans, 1996, in which the Supreme Court invalidated a Colorado Constitutional amendment that sought to foreclose any branch or political entity in Colorado from protecting persons against discrimination based on sexual orientation as a result of "animus toward a class it affects," and lacking a rational relationship to legitimate state interests.  Perhaps in light of his discussion in Obergefell v. Hodges, this "animus" must be based on some "decent and honorable religious or philosophical premises."

Writing for the majority, Justice Kennedy stated that:

        A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward a class of persons affected.  "[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least man that a bare . . .  desire to harm a politically unpopular group cannot constitute a legitimate government interest."

Justice Kennedy summarily dismissed the State's argument that the Amendment before the Court represented a respect of other citizens' freedom of association, and in particular the liberties of landlords and employers who have personal or religious objections to homosexuals.

In 2003, Justice Kennedy, writing for the majority in Lawrence v. Texas, overruled Bowers, holding that the Texas laws making same-sex intimacy a crime, "demeans the lives of homosexual persons." He writes:

     The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the laws of may States that still make such conduct illegal and have do so for a very long time.  That statement, we now conclude, discloses the Court's own failure to appreciate the extent of liberty at stake.

Justice Kennedy traced the history of these kinds of laws back to criminal laws passed in Britain in 1533.  After reciting the history of such laws, both in the UK and in the US, he wrote that the historical grounds upon which the majority relied on in Bowers were more complex than indicated by the majority opinion and concurring opinion.

     It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these 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. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. 

This is the same questions I posed above.  Has society the right to pass judgment at all on matters of morals, and if it does, has it the right to use the weapon of law to enforce that judgment.  If the majority equates society with a majority of Supreme Court Justices, then, apparently society has that right.  If a majority of Supreme Court Justices is not the same as society, then what weight should the Supreme Court give to society's judgments on matters of morals?  What is left hanging is the next question I posed.  If society has the right to use the weapon of law to enforce its judgments on matters of morality, ought it to use that right in all cases or only in some, and if only in some, on what principles should it distinguish?

Justice Scalia, in his dissenting opinion, wrote that "[T]he Court's response today, to those who have engaged in a 17-year crusade to overrule Bowers v. Hardwick, . . . is very different.  The need for stability and certainty presents no barrier."  He continued that while he did not believe in rigid adherence to stare decisis [the doctrine of following precedent] in constitutional cases; but that he did believe that the Court should be consistent, "rather than manipulative in invoking the doctrine." Speaking of the controversy surrounding Roe v. Wade permitting abortion, Justice Scalia quoting Planned Parenthood of Southeastern Pa. v. Casey, wrote, "Liberty finds no refuge in a jurisprudence of doubt."  The decision here in Obergefell v. Hodges is very different from that expression is Planned Parenthood.

Notwithstanding the majority's opinion in Lawrence v. Texas, Justice Scalia wrote without rebuttal that "[C]ountless judicial decisions and legislative enactments have relied on the ancient proposition that a governing majority's believe that certain sexual behavior is 'immoral and unacceptable' constitutes a rational basis for regulation."  Moreover, "State laws against bigamy, same-sex marriage, adult incest, bestiality, and obscenity are likewise sustainable only in light of Bower's validation of laws based on moral choices."  "What a massive disruption of the current social order, therefore, the overruling of Bowers entails."  However, Justice Scalia did observe that nothing in the Lawrence decision implicated a "fundamental right" under the Due Process Clause.

Addressing then Justice O'Connor's concurring opinion, Justice Scalia wrote:

The cases she cites do not recognize such a standard [a more searching form of rational basis review], and they reach their conclusions only after finding, as required by the conventional rational-basis analysis, that no conceivable legitimate state interest supports the classification of the issue.  . . .  Justice O'Connor seeks to preserve them by the conclusory statement that "preserving the traditional institution of marriage" is a legitimate state interest.  But, "preserving the traditional institution of marriage" is just a kinder way of describing the State's moral disapproval of same-sex couples.  [emphasis in the original]

As Justice Scalia wrote in Lawrence v. Texas, it is clear that the Supreme Court has taken sides in the culture war, departing from its role as of assuring, as neutral observer, that democratic rules of engagement are observed.   Further,

This case "does not involve" the issue of homosexual marriage only if one entertains the belief that principle and logic have nothing to do with decisions of this Court.

But, as Justice Scalia wrote, Justice Kennedy was not finished with the issue.  Thus, in United States v. Windsor, the Supreme Court struck down portions of the Defense of Marriage Act (DOMA) holding that it was unconstitutional, impermissibly depriving persons of equal liberty under the Fourteenth Amendment.

There are several things in United States v. Windsor, that are interesting in what Justice Kennedy wrote there and that are important for this discussion of Obergefell.  First, he wrote that the President's refusal to defend DOMA presented a procedural dilemma and represented the President's determination regarding the constitutionality of DOMA.  This is somewhat encouraging, because it suggests that the Supreme Court's interpretation of the Constitution might not be the only interpretation.  Secondly, he discussed the evolution of thought regarding marriage, noting that it was only in recent years that "many citizens had even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage [emphasis added]."  Third, he recognized that DOMA "expressed 'both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (Judeo-Christian) morality."

As I thought of this, and the series of decisions culminating in Obergefell v. Hodges, and particularly Justice Kennedy's role in shaping what has been taken as this newly discovered law regarding marriage, I thought back to my friend, Professor Ronald Dworkin, and his book, Law's Empire.

Briefly stated, Professor Dworkin, argued in a series of books extending some 25 years, that there is inevitably a moral dimension to an action at law, and so also a standing risk of a distinct form of judicial injustice.  Whereas positivist might claim that there can be no "right" answers to legal controversies, only "different" answers, Dworkin insisted that there were, indeed, right answers, and that the controversy about whether there were "right" answers or not, was really about "morality," not metaphysics, and that the "no right answer" thesis, understood as a moral claim, is deeply unpersuasive in morality as well as in law.

While Professor Dworkin and I often disagreed about some of these moral dimensions in our discussions, especially with regard to some of the more controversial moral questions, I think that he was absolutely correct when he argued that lawsuits always involve issues of morality and fidelity.   We think we know what morality is, but "fidelity" in this context is a bit different.  According to Dworkin, fidelity raises the questions of how the community's law differs from its popular morality or traditional values, and how it differs from what true justice requires of any state, no matter the popular convictions or traditional values.  It is when the courts veer from morality and values that were for the most part settled in a community or nation, that questions of fidelity arise.  These judicial judgments, or legislation or regulatory requirement become debated and controversial and a community or nation become unsettled with regard to its own identity and direction.

I think that the Chief Justice, in his dissent is right in this regard, when he wrote:

But this [the majority's] approach [to due process] is dangerous for the rule of law.  The purpose of insisting that fundamental rights have roots in the history and tradition of our people is to ensure that when unelected judges strike down democratically enacted laws, they do so based on something more than their own beliefs.

I think that this is what the late Professor Dworkin was addressing in his book, Law's Empire, when he spoke of fidelity.

Something that I think is worth noting was Justice Kennedy in his opinion in United States v. Windsor, expressly recognized the fact that there are over 1000 federal laws in which marital or spousal status is addressed.  What courts cannot do and what the democratic process at least allows to some extent is some considered evaluation of the impact on these laws resulting from decisions, such as the instant decision, regarding the definition of marriage.

Indeed, there is a tendency for the Court to take broader policy positions than are required by Article III of the Constitution which limits the jurisdiction of the Supreme Court and inferior courts to justiciable "cases" and "controversies."  I see no general warrant in the U.S. Constitution for the Supreme Court or lower federal courts to speak ex cathedra on all matters social, economic, political, policy, and moral when those matters are being debated within society. When it does so, it seems to me to violate the separation of powers, both horizontally, that is, between the three branches of government, and vertically, that is, between the central federal government and the states.

One legal scholar has written that Justice Kennedy is the first "gay" justice on the Supreme Court just as President Clinton was described as the first black president.  I am not prepared to judge, nor could I judge Justice Kennedy's biases in favor of same-sex relationships notwithstanding the language he has used in these decisions.  My sense is that he is probably more libertarian in his views regarding sexual matters and marriage than favorable to same-sex intimacy and marriage, and although his view of the "due process clause," does not appear to be well reasoned, and his views with regard to "equal protection of the laws," are unclear, they must be quite broad to recognize same-sex intimacy and marriage, while perhaps denying "equal rights under the law" to other classes of individuals.

But there is also language in the these decisions, and especially Obergefell v. Hodges, which is troubling.  Justice Kennedy appeared to breezily dismiss concerns about religious freedom.  Although he did acknowledge the existence of religious freedom under the First Amendment, he really short-circuited what was recognized in the First Amendment saying that neither those who oppose same-sex marriage on the basis of religious beliefs are disparaged in his opinion.  Indeed, as I quoted above from his opinion, "those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."  Further, he states that they may continue to teach the principles that are so fulfilling to them, protected by the First Amendment.  Again, this reminds me of Genesis 3, when the serpent misquoted God, thereby denying the substance of His command.

Of course, we know that the First Amendment grants freedom from State establishment of religion and prohibiting the free exercise thereof.  Perhaps it is the limiting language of Justice Kennedy that caused such a response by the dissenting justices and confusion on the part of much of the public.

Which brings me to another characteristic of postmodernity.  While postmodernity with its stress on privatization, one of its benefits is that it provides the opportunity for individual freedom, freedom to buy more, to travel more, and freedom from constraints of community tradition and other people.

One question humanity always faces is one of sovereignty and authority.  We are either under authority, both as individuals and as a people, or we are not.  And I do not believe that the last option is humanly possible.  What the majority suggests in this line of cases, is that the individual is sovereign, at least with regard to sexual matters and marriage.  That is what Justice Kennedy speaks of when he talks about autonomy.  And if we as individuals are sovereign and autonomous, then how can we be a people under law?

But, privatization is also limiting.  For example, in areas of religion, modern society allows freedom of religion, but only so long as it is confined to private and personal preference, family, and private association. This sets up a sort of harmless spiritual reservation established by the architects of secular apartheid.

But as the Chief Justice wrote in dissent,

     In sum, the privacy cases [cited by the majority] provide no support for the majority's position, because the petitioners do not seek privacy.  Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits.

A second trend in postmodernity is pluralization, or the process whereby the number of options in private sphere radically multiplies at all levels, especially with regard to worldviews, faiths, and ideologies.  This may be beneficial for the variety and richness of life and life experiences it brings to society, an openness to people of different traditions and life experiences with the opportunity to examine one's own presuppositions and ideas.

However, with the increase in choice and change, and modern question marks, there is almost an automatic decrease in commitment, continuity, and conviction in relationships, ideas, worldviews, and faiths.

As stated by the Chief Justice, "Expanding a right [to same-sex marriage] suddenly and dramatically is likely to require tearing it up from its roots."

He ended saying:

Celebrate the opportunity for a new expression of commitment to a partner.  Celebrate the availability of new benefits.  But do not celebrate the Constitution.  It had nothing to do with it.

What the Chief Justice does not say is that we are celebrating what has traditionally been regarded as "sin" in all monotheistic religions, and indeed, in many faiths, in this country and around the world for many millennia.

Which now leads me to one more aspect of modernity and postmodernity.

What does this have to do with civil society, and how it is organized, recognized, and function in a given community or nation?  During the oral argument in Obergefell v. Hodges, the issue of tax exempt status of churches and religious based organizations arose as a result of some questions posed by one of the justices.  See: http://rvanbroekhoven.blogspot.com/2009/11/government-civil-society-charity-and.html

But, it goes beyond that.  This puts at risk the religious rights of professional counselors, other professionals, school teachers, parents of children in public schools, government officials such as county clerks, and wedding services providers.  Something we have already seen even before the Supreme Court announced its decision in Obergefell v. Hodge.

It may not affect the rights of ministers of all faiths to perform marriages in accordance with their own faith commitment regarding traditional marriage, at least not now, but it could threaten a church's tax exempt status as admitted by the Solicitor General, the housing policies of religious schools, colleges and universities, the accreditation of such schools, the employment policies of churches, religious schools, and organizations, government contracts and the ability to provide social services within a community.

The discussion regarding the implications of these decisions to civil society will continue in the next post and what should be done about it.