After Friday’s grotesque Supreme Court ruling that grants legal status to homosexual marriages based on the opinion of five people that such a bizarre right is found in the Constitution, I think it is time for Conservatives to get with the program.
Many of our betters — this would be the 300 or so “Conservatives” who signed an amicus brief extolling the rightousness of trashing marriage — have encouraged us to let this go so we can concentrate on important issues, like the marginal tax rate. Presumably they thought Western Civilization and Christianity didn’t merit a defense.
We’ve long known that this day was coming. Justice Scalia predicted it when Anthony Kennedy, who now must qualify as the first homosexual Justice*, authored Lawrence versus Texas. In Scalia’s dissent he said:
Finally, I turn to petitioners’ equal-protection challenge, which no Member of the Court save Justice O’Connor, ante, at 1 (opinion concurring in judgment), embraces: On its face §21.06(a) applies equally to all persons. Men and women, heterosexuals and homosexuals, are all subject to its prohibition of deviate sexual intercourse with someone of the same sex. To be sure, §21.06 does distinguish between the sexes insofar as concerns the partner with whom the sexual acts are performed: men can violate the law only with other men, and women only with other women. But this cannot itself be a denial of equal protection, since it is precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.
The objection is made, however, that the antimiscegenation laws invalidated in Loving v. Virginia, 388 U.S. 1, 8 (1967), similarly were applicable to whites and blacks alike, and only distinguished between the races insofar as the partner was concerned. In Loving, however, we correctly applied heightened scrutiny, rather than the usual rational-basis review, because the Virginia statute was “designed to maintain White Supremacy.” Id., at 6, 11. A racially discriminatory purpose is always sufficient to subject a law to strict scrutiny, even a facially neutral law that makes no mention of race. See Washington v. Davis, 426 U.S. 229, 241—242 (1976). No purpose to discriminate against men or women as a class can be gleaned from the Texas law, so rational-basis review applies. That review is readily satisfied here by the same rational basis that satisfied it in Bowers–society’s belief that certain forms of sexual behavior are “immoral and unacceptable,” 478 U.S., at 196. This is the same justification that supports many other laws regulating sexual behavior that make a distinction based upon the identity of the partner– for example, laws against adultery, fornication, and adult incest, and laws refusing to recognize homosexual marriage.
Kennedy’s decision on Friday continued the path he has taken since discovering the Right to Buggery hidden among the brambles of Equal Protection. Take a moment and read it. It is breathtaking in its implications:
This analysis compels the conclusion that same-sex couples may exercise the right to marry. The four principles and traditions to be discussed demonstrate that the
reasons marriage is fundamental under the Constitution apply with equal force to same-sex couples.
A first premise of the Court’s relevant precedents is that the right to personal choice regarding marriage is inherent in the concept of individual autonomy. This abiding connection between marriage and liberty is why Loving invalidated interracial marriage bans under the Due Process Clause. See 388 U. S., at 12; see also Zablocki, supra, at 384 (observing Loving held “the right to marry is of fundamental importance for all individuals”). Like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make. See Lawrence, supra, at 574. Indeed, the Court has noted it would be contradictory “to recognize a right of privacy with respect to other matters of family life and not with respect to the decision to enter the relationship that is the foundation of the family in our society.” Zablocki, supra, at 386.
Choices about marriage shape an individual’s destiny. As the Supreme Judicial Court of Massachusetts has explained, because “it fulfils yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.” Goodridge, 440 Mass., at 322, 798 N. E. 2d, at 955.
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation. See Windsor, 570 U. S., at ___– ___ (slip op., at 22–23). 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. Cf. Loving, supra, at 12 (“[T]he freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State”).
What Kennedy has done is create a realm of anarchy where personal “dignity” outweighs the ability of society to constrain it. It actually fulfills the Jeremiad of Rick Santorum:
And if the Supreme Court says that you have the right to consensual sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything.
The language used by Kennedy was so striking that even Chief Justice John Roberts paused to consider that words might actually have meanings:
Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one.
It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. If “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices,” ante, at 13, why would there be any less dignity in the bond between three people who, in exercising their autonomy, seek to make the profound choice to marry? If a same-sex couple has the constitutional right to marry because their children would otherwise “suffer the stigma of knowing their families are somehow lesser,” ante, at 15, why wouldn’t the same reasoning apply to a family of three or more persons raising children? If not having the opportunity to marry “serves to disrespect and subordinate” gay and lesbian couples, why wouldn’t the same “imposition of this disability,” ante, at 22, serve to disrespect and subordinate people who find fulfillment in polyamorous relationships?
Let’s be serious, polygamy actually has a history among humans while homosexuality has consistently been both denigrated if not out right legally proscribed. If I had to point to which is a greater danger to society, the acceptance of homosexual marriages or the acceptance of a traditional institution like polygamy, it isn’t even close. Polygamy makes sense economically and from a child rearing point of view. Polygamy, while not without faults, seems to be the very institution a society populated by unwed mothers and feckless hipsters cries out for. In the words of the late mil blogger Carrol LeFon, aka Neptunus Lex, when discussing the merits of the single seat F/A-18 with the two-seat F-14; any man who needs two wives should be allowed to have them.
Kennedy’s decision also calls into question laws against bigamy. There is no way laws forbidding incestuous marriages can possibly survive the level of Constitutional scrutiny in Obergefell. It is extremely doubtful that laws against bestiality can survive. We already allow ownership of animals which includes the right to euthanize them at will. It is hard to see why having sex with Fido, if it is important to your dignity and autonomy as a person, could be illegal because now we know that there is no place in American jurisprudence for moral judgment. I don’t know that this can extend to marriage per se, but we’ve already crossed that threshold of allowing animals to inherit money so it is hard to see why marriage is all that different.
I think the strategy of fighting this battle, as Texas has elected to do, is self-defeating. The homosexual community and those who fetishize homosexuality (like the aforementioned conservatives) should get to see the full impact of Kennedy’s decision. We’ve been told we are hateful bigots for upholding the established values of civilization. Now that marriage has been destroyed by the Supreme Court, there is no possible reason why we shouldn’t get with the program. State legislatures, particularly conservative ones, should act immediately to remove any legal barrier to any marriage whatsoever. And when those polyamorous, zoophiliac groupings show up in California and New York… because you know that’s were they will head… let those states take the lead in setting limits on the inherent dignity and autonomy of matrimony.
*I have no first hand knowledge of Justice Kennedy’s sexual preferences and even less interest. But if Bill Clinton can be the “first black president”, it seems that Justice Kennedy has been the sugar daddy of the homosexual rights and privileges coalition and certainly has earned the right to be called the First Homosexual Supreme Court Justice.