The majority opinion of the Supreme Court’s decision on the redefinition of marriage was expected. It was the dissent that was news. And ominous, for if the majority has changed the present law on marriage, the dissenting opinion indicates the future for religious liberty.
The majority opinion for the court was written by Justice Anthony Kennedy, who, apparently, alone gets to decide disputed social questions in a manner that ancient kings would envy. He has been heading toward his gay-marriage moment for more than two decades. In 1992, in the Casey opinion, which confirmed America’s unlimited abortion license, Kennedy wrote that “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.”
That innovation in constitutional jurisprudence greased the skids for a 23-year slide through social liberalism. For the decision in Obergefell v. Hodges last week, Kennedy updated the Casey endorsement of metaphysical relativism and hitched it to identity politics, beginning his majority opinion by declaring that “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.”
That Kennedy would find a way to impose same-sex marriage has been certain since he struck down the Defense of Marriage Act in the Windsor decision in 2013, so it mattered little which provision of the Constitution would be employed to that effect. (It was the 14th Amendment.)
More important was the moral metaphysics endorsed by the court to get the redefinition-of-marriage job done.
In 2003, the court ruled in Lawrence that the Constitution protected all intimate sexual acts and forbid the state from preferring heterosexuality to homosexuality in law. Justice Antonin Scalia wrote in his dissent that the majority’s logic would sooner or later lead to a court mandate for same-sex marriage. The majority opinion in that case — written by Kennedy — protested that it would not lead to gay marriage. The majority was wrong; the dissent was proved right only 12 years later.
The relativistic, identity-expressive moral metaphysics of the court bodes ill for all those who follow another approach to morality or the law. Prime among dissenters from the court’s new orthodoxy will be Catholics and their institutions.
“The free exercise of religion means that we have a right not only to debate it openly in the public square, but to operate our ministries and to live our lives in accordance to the truth about marriage without violence, or being penalized, or losing our tax exemption, or losing our ability to serve the common good through our social services and through education,” Archbishop William Lori of Baltimore, chair of the U.S. bishops’ conference’s Ad Hoc Committee on Religious Liberty, told EWTN News Nightly.
Justice Kennedy, echoing his soothing words from Lawrence, wrote that there was nothing to worry about in regard to religious liberty, just as he wrote about gay marriage in 2003.
Chief Justice John Roberts didn’t believe him. The metaphysics of same-sex marriage means that religious liberty is in danger.
“The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage,” wrote Roberts is his dissent. “The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”
Is the chief justice being alarmist? No more than Scalia was in 2003, when he predicted — correctly — where the court was headed. Kennedy’s majority opinion, which considers any opposition to gay marriage as expressing a desire to demean gay people, is impossible to square with his protest that religious liberties are safe.
“These apparent assaults on the character of fair-minded people will have an effect, in society and in court,” countered Roberts. “Moreover, they are entirely gratuitous. It is one thing for the majority to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share the majority’s ‘better informed understanding’ as bigoted.”
Roberts believes that in a future case between sexual activists expressing their identity and a religious believer, there is little doubt how the court will rule, given the logic of its own decision.
Religious-liberty defenders who have increasingly raised the alarm now have the chief justice of the Supreme Court agreeing with their dire warnings.
In interpreting the Constitution, the court majority has followed Justice Kennedy in articulating, over nearly a quarter century, an extra-judicial philosophy that is incompatible with Christianity.
A shorthand summary of it was offered by Cardinal Joseph Ratzinger the day before he was elected pope in 2005. He called it the “dictatorship of relativism” — the relativism Kennedy first embraced in 1992.
The court is now set for the dictatorship.
He served as a consultant to the U.S. bishops’ Ad Hoc Committee on Religious Liberty from 2011 to 2014.