The first thing that has struck every observer – fan and foe alike – is the astounding rapidity with which the same-gender marriage movement swept all before it. Twenty years ago, same gender marriage seemed likely to be confined for the foreseeable future to some outlier state, like tiny Hawaii.
As recently as 2008, voters in hyper-liberal California voted for a constitutional amendment to define marriage in terms of a union between a man and a woman, and both the major Democratic candidates for the presidency that year, Senators Barack Obama and Hillary Clinton, affirmed their support for the traditional definition of marriage as between a man and a woman. (The latter's husband, President Bill Clinton, signed into law in 1996 the Defense of Marriage Act, passed by overwhelming majorities in both houses of Congress, which adopted the traditional definition of marriage for all federal purposes – e.g., social security spousal benefits – and permitted states not to recognize same-gender marriages performed in other states.)
It was only eleven years ago that the Massachusetts Supreme Court, in an opinion authored by another one of my law school classmates, Chief Justice Margaret Marshall, mandated same-gender marriage in that state by judicial fiat, making Massachusetts the first state to have same-gender marriage. Last week, the U.S. Supreme Court did the same for all 50 states.
The title of Robert H. Bork's jeremiad Slouching Towards Gomorrah: Modern Liberalism and American Decline has become all too literal.
In response to the assault on every front against traditional religious values, Rod Dreher wrote an essay in Time,following the Supreme Court's decision in Obergefell, advocating that Christians retreat into their own communities, the better to keep "the light of faith burning through the surrounding cultural darkness." That is a strategy that Orthodox Jews, especially the more chareidi, have always adopted.
But such a retreat from the larger society can be, at best, only be partially successful – whether at the cosmic level or the diurnal. First, the cosmic: As Rashi informs us, when andromolusia comes to the world, it sweeps before it both the good and the evil (Rashi to Bereishis 6:13). And the more mundane level, there is no more hiding behind ghetto walls. They have all been breached in dozens of ways.
By short-stopping the political process in the 50 states and turning same-gender marriage into a constitutional mandate under the U.S. Constitution, the Supreme Court made it far more difficult for insular minorities, like Orthodox Jews, to protect themselves from the cultural onslaught. In determining that same-gender marriage is mandated as a matter of "due process," the Supreme Court effectively declared that the opposite view cannot be defended rationally and can only be explained as the product of bigotry and hatred. Thus did Justice Anthony Kennedy dispense with the collective wisdom of mankind, including that of his own Catholic Church, over the millennia.
What employer will hire someone who holds, or is even suspected of holding (by virtue of his yarmulke) such benighted views? How will Orthodox Jews interact with colleagues in the workplace? Will big firms hesitate to hire us out of fears that we will disrupt workplace harmony? And if entrée into the larger world of commerce and the professions is cut off, where will the earnings to pay $40,000-$60,000 tuition bills come from?
Justice Kennedy's opinion offers nothing to distinguish between opposition to same-gender marriage and the views of anti-misceginationists. And if that is the case, are religious institutions not likely to lose their tax exemptions, just as Bob Jones University did?
The recent threat of economic boycotts of Indiana and Arkansas, both staunchly conservative states, if they enacted their own versions of the federal Religious Freedom Restoration Act (RFRA) – they did not – make it likely that no more states will adopt RFRA statutes. The original federal statute, passed by overwhelming majorities in Congress in 1993 in response to Oregon's denial of unemployment benefits to American Indians fired for the ritual use of peyote, would not pass any Democratic-majority legislature today, and it is highly unlikely that RFRA will be expanded in light of Obergefell.
WHAT MAKES JUSTICE KENNEDY believe that he is either qualified or empowered to decide whether there is any rational basis for opposing same-gender marriage? I would not ask the question of the four liberal/progressive justices on the Court. Their votes were never in doubt because it was understood that they would vote their personal views. They were happy to let Justice Kennedy undertake the thankless task of offering a constitutional justification for mandating those views.
The four sure votes on the Court were marinated in the same ethos that I imbibed in law school. How to use the law to force the cretins of the world to behave was our question. The judicial restraint of one-time New Deal stalwart Felix Frankfurter (i.e., his concern with proper institutional roles and to whom the Constitution assigns decision-making authority) was anathema to us. Only the results mattered. The important point is that the brightest and most moral should make the important decisions. And of our own worthiness we had no doubts.
In this we harkened back to the early progressives, who created the modern administrative state, in which much of the crucial governmental decision-making has been delegated to unelected bureaucrats. But at least President Woodrow Wilson, one of the founding fathers of progressivism, admitted that the Constitution, with its antiquated separation of powers and the federal system, stood in the way of his cherished dreams for modern governance. He did not claim constitutional sanction for the government by the experts, headed by a strong president, that he advocated.
It can be plausibly argued that not every constitutional issue can be decided by reference to the text itself, or the minutes of the Constitutional Convention, or the Federalist Papers. The Founders, for all their collective brilliance, could not anticipate every aspect of modern society. "Commerce" in the 21st century, for instance, is far different from that of the 18th century.
But one thing they surely did confer upon the United States was a specific structure of government and the relationship between its various parts. And that government was to be republican in form, with the lawmaking power entrusted to the people's elected representatives. They did not envision the Supreme Court sitting as a super-legislature.
Moreover, they created a federal system, with each state serving as its own social laboratory. James Madison, the primary drafter of the Constitution, wrote in Federalist 45 that the states would remain sovereign over "all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people."
The definition of marriage and its regulation has always been one of those "objects." As Chief Justice Roberts pointed out in his dissent, state legislatures are far better suited than courts, which can only decide the case before them, to anticipate and deal with the impact of a decision such as recognizing same-gender marriage. For instance, a legislature defining marriage to include same-gender couples could simultaneously act to protect the religious freedom of those for whom marriage is also a religious sacrament and who have no wish to be implicated as photographers or cake bakers or caterers in the celebration of that sacrament in a manner repugnant to their beliefs.
JUSTICE KENNEDY apparently took to his task with relish. He is reputed to have many fine qualities. But humility is not one of them. A more modest man would not so readily present to the world his sophomoric reflections on the mystery of existence, as he did in his majority opinion. One can fairly picture Kennedy penning his fatuities thinking that he had written something profound. A Polonius for our time.
But again, where did he get the idea that his Hallmark greeting card sentiments – sentiments Justice Scalia mercilessly punctures again and again – are entitled to settle one of the most contentious social issues of our time. Though popular sentiment for same-gender marriage has grown rapidly, still, as Justice Thomas pointed out in his dissent, 32 of the 35 times the issue has been presented to voters in referenda, the traditional definition of marriage prevailed.
Kennedy obviously knew that nothing in the text of the Constitution remotely compelled his result. Every state at the time of the ratification of the Constitution defined marriage in traditional turns, and so too every state in the 135 years from the post-Civil War passage of the Fourteenth Amendment until the 2004 decision of the Massachusetts Supreme Court. In all that time, no one ever contemplated that same-gender marriage was required.
The Fourteenth Amendment's guarantee of equal protection of the law for all citizens provides no more support. For that guarantee requires that the government treat like-situated persons equally. But same-gender and traditional marriage are manifestly not the same thing, most obviously in their reproductive capacity. The conception of marriage underlying both is vastly different, as Sherif Girgis, Ryan T. Anderson, and Robert P. George demonstrate in their 2012 book, What is Marriage? Man and Woman: A Defense.
So Justice Kennedy was ultimately left with only the due process clause of the Fourteenth Amendment upon which to hang his "better informed understanding" of liberty. Only one little problem: the clause, as the name implies, refers to required procedures – "Nor shall any State deprive any person of life, liberty, or property without the due process of law."
True, there is a long-discredited doctrine of "substantive due process," under which a politically conservative Court struck down early progressive era social legislation, such as limitations of the number of hours a baker could work a week, after finding implicit in the "due process" clause an "individual liberty of contract" to work as many hours as one wishes. Lochner and its progeny were subsequently rejected by almost the entire legal community for substituting the particular socio-economic views of the members of the Court for the law-making authority of the state legislatures.
But that is precisely what Kennedy has done as well. As the dissenters point out, Justice Scalia most strenuously, the Supreme Court is a highly unrepresentative body comprised of nine lawyers who all attended one of two law schools and were mostly raised on one of the two coasts of America. Never did Americans consent to be ruled by a Court of nine unelected Platonic Guardians, even if they had more aptitude for the role than Justice Kennedy.
One can gleefully imagine Justice Kennedy forced to debate the meaning of life or even the more quotidian definition of marriage with a true philosopher like Professor Robert George, whose arguments about the nature of marriage are left unaddressed by the Court's opinion. Yet Kennedy's views have prevailed by force majeure, not superior merit.
In the end, Kennedy's opinion constitutes a naked assertion of power, by those who view themselves so entitled, or, in Justice Scalia's words, "social transformation without representation." And that's the antithesis of republican government.