The Moral of the Court

The final paragraph of Justice Kennedy's decision is being hailed as an eloquent and humane expression that identifies what was really at stake in the marriage case: not the Constitutionality of traditional marriage laws, but the dignity and happiness of a particular group. Here is the full paragraph:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people become something greater than they once were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

And for an example of response, see this teary appreciation in Slate.

Obviously, Kennedy's words are moral instruction, not legal reasoning. For that very reason, they are a rallying cry, neatly joined to the celebrations that have ensued this week.

It is easy to denounce them on classic liberal grounds. The opening sentence is offered as a self-evident premise, with the list of nouns at the end intensifying the topmost value of marriage. No union is more meaningful and consequential, it says. Who could doubt its truth when it reinforces such hallowed virtues?

Of course, many Americans could. Religious believers consider marriage a sacred union, but they don't set it ahead of the union of man and God. The First Commandment and Jesus's words in Mark 12 (“Love the Lord your God . . .”) tell them so.

And we have a feminist tradition that regards marriage as tainted with patriarchy, plus a Marxist tradition that ties it to bourgeois ideology.

On an individual level, many people have experienced the union of parent and child more profoundly than the spousal union.

And what about all those people who have found marriage a disaster and divorced, or who prefer the single life by choice? In their case, Kennedy is telling them precisely the opposite of what today's tolerance decrees must never be said: “your preferences are defective—you are a failure.”

And so we can argue that Kennedy's benign-sounding intonation is no such thing. It is, instead, judgmental and exclusionary.

But we can't stop there. It isn't enough to say that this conclusion to the opinion marginalizes the faithful and unmarried and badly-married. We have to go to the substance of the claim and prove it wrong. That means holding Kennedy's thinking up to the glare of logic and morality and exploding it.

It isn't hard. This specimen of righteous rhetoric is thin and manipulative. It survives on emotion, not reason.

Look at this sentence: 

Their hope is not to be condemned to loneliness, excluded from one of civilization's oldest institutions.

This assertion is so baldly specious and phony that one wonders how none of the clerks caught it on the way out the door. Kennedy appeals to one of civilization's oldest institutions as if it were an empty thing waiting to be filled with couples. His locution suggests that people have been excluded from it for reasons external to marriage itself, as if one-man-and-one-woman weren't essential to the definition of marriage all along.

But that's what marriage always was. To say that admitting same-sex couples to marriage merely removes an artificial barrier is to utter a falsehood. Kennedy's decision doesn't honor the age-old institution. It changes it fundamentally. He cites traditional marriage for authority in this decision, then proceeds to change it for good.

It is no surprise that Justice Kennedy's reasoning is so distorted—and so annoyingly pompous. We've seen it before. The statement in Planned Parenthood v. Casey—“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”—will endure as a prime specimen of fatuous individualism.

And in the disparate impact decision last week, Kennedy offered another sweeping judgment that waxes rhetorically and wanes semantically. It comes in another closing paragraph, whereby our self-inflating lawyer offers a national moral proclamation:

Much progress remains to be made in our Nation's continuing struggle against racial isolation.

The words tumble forth in two tiresome cliches—”progress remains to be made,” “continuing struggle”—with a new catchword added on: “racial isolation.” Don't ask what “racial isolation” means. The closer you look, the emptier it becomes.

Mark Bauerlein is senior editor of First Things.