The day after declaring Obamacare magically rewritten and that the lawsuits against discrimination in housing require no proof of actual discrimination, the Supreme Court found a unicorn in the 14th Amendment.
By a vote of 5-4, the Supreme Court ruled that the right to privacy under that aforementioned 14th Amendment (adopted in 1868, when every state in America criminalized sodomy) requires that every state in America grant marriage licenses to men who want to marry men and women who want to marry women, and that every state recognize such licenses from every other state.
By this point, nobody should be surprised that the Supreme Court sees new rights in its Cheerios. As our Supreme Rulers, the Supreme Court can declare what they want to declare, since rule of law died long ago at the hands of leftist deconstruction of language. But this decision is particularly galling to those who believe words have meaning and that government is not God. The Court rejects both of those claims. Words have no meaning; they are merely tools to be used in implementation of the utopian agenda of the far-left. Government is God, a dignity-conferring institution capable of making moral that which religion teaches is sinful, logic teaches is worthless, and societal experience teaches is societally counterproductive.
Naturally, Justice Anthony Kennedy, who has made it his lifelong work to read same-sex rights into the Constitution (this, after all is the man who once wrote, based wholly on the authority of the voices in his head, that the Constitution mandates “respect” for sodomy), delivered the majority opinion.
Kennedy opens by essentially paraphrasing himself in the pro-abortion case Planned Parenthood v. Casey (1989), in which he established one of his many preferred fantasy rights: “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 human life.” This time, he simply says that people have a right to “within a lawful realm, define and express their identity.” Of course, the Court defines that “lawful realm” at its whim; otherwise Charles Manson would simply have been expressing his Constitutional rights. Same-sex marriage falls within that lawful realm, says Kennedy, although he fails to explain how the state not granting people a piece of paper equates to preventing them from expressing their identity. Presumably the states will now be required to give Rachel Dolezal a race-change certificate.
Kennedy then launches into a history of marriage:
From their beginning to their most recent page, the annals of human history reveal the transcendent importance of marriage. The lifelong union of a man and a woman always has promised nobility and dignity to all persons, without regard to their station in life. Marriage is sacred to those who live by their religions and offers unique fulfillment to those who find meaning in the secular realm. Its dynamic allows two people to find a life that could not be found alone, for a marriage becomes greater than just the two persons. Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations.
Kennedy quotes everyone from Confucius to Cicero on the importance of marriage. Then, begrudgingly, he admits, “It is fair and necessary to say these references were based on the understanding that marriage is a union between two persons of the opposite sex.” He adds, patronizingly, that the view that such a definition is the only definition “has been held – and continues to be held – in good faith by reasonable and sincere people here and throughout the world.”
But those people are wrong, because Justice Kennedy says so. Justice Kennedy and his brethren know that the importance of marriage rests on fundamentally redefining it, just as Barack Obama knows that the importance of America rests on fundamentally changing it. Marriage’s foundational nature is so important that it must be redefined into meaninglessness:
The petitioners acknowledge this history but contend that these cases cannot end there. Were their intent to demean the revered idea and reality of marriage, the petitioners’ claims would be of a different order. But that is neither their purpose nor their submission. To the contrary, it is the enduring importance of marriage that underlies the petitioners’ contentions. This, they say, is their whole point. Far from seeking to devalue marriage, the petitioners seek it for themselves because of their respect—and need—for its privileges and responsibilities. And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.
In other words, Kennedy and the Court now contend that the intent of those who want to change marriage is a defining feature here, and that since people are born gay, this is their only path to happiness. Presumably, if the intent of a polyandrous group were to extend dignity to themselves, that too would be acceptable, given that polyandry is widely practiced throughout humanity and in the animal kingdom as well. It is worth noting here that Kennedy’s contention that sexual orientation is “immutable nature” now places sexual orientation on the same level as race for purposes of law. We will return to this point shortly.
Kennedy continues by telling the lovelorn stories of star-crossed homosexual lovers who do not have the same privileges as those who marry those of opposite sex. It’s all very moving, and it all sounds very much like Justice Kennedy looks forward to home-viewing Cate Blanchett’s Carol, and it’s all very irrelevant to legality.
But Kennedy has no truck with legality. So Kennedy goes on to pretend that arranged marriages and coverture, which have been abandoned, were as integral to marriage itself as the sex of the participants. This is equivalent to arguing that changing the air freshener hanging from your rearview mirror changes the fundamental nature of your automobile the same way removing the transmission would. But no matter: the Godhead is lecturing. So he tells us about the history of gay and lesbian rights in the United States, drones on about the evils of the American Psychiatric Association, and blathers about the case law of homosexuality.
All of this is chaff. The kernel comes next:
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 Fourteenth 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. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
And that, as they say, is that. That is the entirety of the legal argumentation of Justice Kennedy and the majority. They know better. They have declared. End of story. Prior case law assuming marriage to be between a man and a woman – moot (the Court, says the Court, “made assumptions defined by the world and time of which it is part,” as opposed to this Court, which has been blessed with the eternal knowledge of Justice Kennedy and his leftist colleagues). The rationale for marriage – moot (marriage, Kennedy blithely declares, is not about producing, bearing, and raising children, but about other more important principles).
Kennedy says that marriage rests on four bases:
(1) Individual autonomy: “There is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.” Why individual autonomy requires a government-issued license is anyone’s guess; as Chief Justice Roberts writes in dissent, “petitioners do not seek privacy. Quite the opposite, they seek public recognition of their relationships, along with corresponding government benefits.” Justice Scalia, as usual, is more scathing: “Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie.”
(2) Commitment: “Marriage responds to the 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.” Of course, loneliness is not a legal argument.
(3) Childbearing and rearing: “[I]t safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education.” This one, for obvious reasons, is problematic for the majority, so they simply elide the issue by saying gay couples must marry because gay couples have adopted children (“children suffer the stigma of knowing their families are somehow lesser”). Never mind that gay couples cannot produce children or whether children are better off with straight couples. We simply assume the conclusion, and the rest follows. And this particular aspect of marriage – the key aspect in world history – is not that important anyhow, the Court declares: “The constitutional marriage right has many aspects, of which childbearing is only one.”
(4) Keystone of the social order: “Marriage remains a building block of our national community. For that reason, just as a couple vows to support each other, so does society pledge to support the couple, offering symbolic recognition and material benefits to protect and nourish the union.” This ignores why marriage is a building block: it protects children, allows them to grow up healthy and whole, and prevents the breakdown of the social order itself, which we have seen as childbearing out of wedlock has increased dramatically. But since the left doesn’t care about childbearing out of wedlock, and childbearing is just “only one” aspect of marriage, no matter: marriage is a cornerstone, though the majority undermines its reason for being one.
In the end, Kennedy’s case is simply that to be against same-sex marriage is bigotry: “It demeans gays and lesbians for the State to lock them out of a central institution of the Nation’s society.” With breathtaking arrogance, Kennedy concludes:
The limitation of marriage to opposite-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.
For thousands of years, everybody got it wrong. For hundreds of years, every American state got it wrong. Today, the vast majority of the planet’s population gets it wrong, and so do hundreds of millions of Americans. But their wrongness is “manifest.” Why? Because Kennedy says so.
But he goes even further: he explains that rights emanate not from God or nature, but from the wise oligarchs of the government, who can reinterpret rights as they see fit:
[R]ights 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.
Better understanding by whom? By the government, of course. Which means that since the government is God, it can change the definition of fundamental rights and institutions at whim. Is polygamy on the table? Why, exactly, wouldn’t it be? It fulfills all four marital criteria Kennedy lays out – and who is to say that those criteria will not change over time, just as the criteria for opposite-sex partners changed?
Then Kennedy drops the most dangerous line of all:
Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.
Under this rubric, religious Americans can kiss their own liberties goodbye. It does not matter whether religious Americans stand for traditional marriage because of their religion or because of secular concerns. They are, for all Kennedy’s pretty words to the contrary, to be considered legal bigots. If religious people must be excluded from public policy, there will be no protections for them in law anywhere.
Kennedy defines same-sex marriage as a “fundamental right,” which is what allows the Court to overturn the vast majority of state laws, and further prevents states from rejecting marital benefits to everyone equally (if you have a right to a marriage certificate, you have a right to marriage certificate). That redefinition will also allow the Court to overturn the First Amendment protections of freedom of religion. Kennedy pays lip service to religious freedom:
Finally, it must be emphasized that religions, and 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. The First Amendment ensures that religious organizations and persons are given proper 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.
This, to put it mildly, is bullshit. Anyone who relies on the Supreme Court to protect the rights of religious schools not to employ members of same-sex couples and operate with business licenses and state imprimaturs of accreditation; or the rights of religious institutions not to perform same-sex marriages and operate as businesses or non-profits; or the rights of parents to home school their children and teach them about the absence of value in same-sex sexual activity and marriage, without the interference of the state – all of those people are whistling past the graveyard in which the Supreme Court has dismembered and buried the Constitution in a shallow hole.
Justice Kennedy just redefined a fundamental right and forced elected state governments to slap their stamp of approval on that right. He then went on to equate sexual orientation with immutable characteristics like skin color, meaning that buried in this decision is the far more important decision that private parties across the country must acknowledge and embrace same-sex marriage under the Civil Rights Act. The First Amendment will be no protection. Why wouldn’t the Court, with or without Kennedy, rip away religious freedoms on the basis of a new fundamental right? If the Court can declare a new fundamental right, why can’t it chop away at an old one we now realize must change based on a “better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era”?
The majority opinion drew three dissents. The first, by the disappointing Chief Justice Roberts, is a basic legal case that even if you like same-sex marriage, there is no fundamental right to its redefinition by governments. “Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be,” Roberts writes, in a line that would have been far more convincing before he rewrote Obamacare in favor of how it should have been written according to him. He concludes:
If you are among the many Americans—of whatever sexual orientation—who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. 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.
Justice Thomas agrees, explaining that the Constitution protects negative liberties, not positive grants of privileges; he further explains, rightly, that the majority’s assumption that government confers dignity through marriage is nonsense (“The government cannot bestow dignity, and it cannot take it away”). He then notes the threat to religious liberty:
Religious liberty is about more than just the protection for “religious organizations and persons… as they seek to teach the principles that are so ful- filling and so central to their lives and faiths.” Ibid. Religious liberty is about freedom of action in matters of religion generally, and the scope of that liberty is directly correlated to the civil restraints placed upon religious practice.
Not for long.
Justice Scalia’s own dissent is significantly more fiery. Calling the decision a “judicial Putsch,” he writes:
[I]t is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected commit- tee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.
But in the idolatry of the left, we do not have the freedom to govern ourselves, nor even to rely the old God for our values and truths. Our betters will lead us. And they will grant any right they see fit, and reject any liberty they see fit, and redefine any term they see fit. Democracy in America did not die with jackboots; it died with the boredom and stupidity of an American people complicit in its demise, celebrating the circuses and the games provided by its new rulers, fat and happy in their submission. Let the parades be held; let the call go forth. By the power vested in them by, well, them, the Supreme Court and the left declare Americans husbands and husbands, wives and wives — and all of them slaves.
Ben Shapiro is Senior Editor-At-Large of Breitbart News and author of the book, The People vs. Barack Obama: The Criminal Case Against The Obama Administration (Threshold Editions, June 10, 2014). Follow Ben Shapiro on Twitter @benshapiro.