by William McGurn –
In the heady days since Anthony Kennedy unearthed a constitutional right for Americans “to define and express their identity,” the extravagance of the Supreme Court’s claim has taken some by surprise. It shouldn’t have. In finding for same-sex marriage the way he did, Justice Kennedy made official what he made inevitable a quarter-century back.
That was in 1992. The occasion was a Supreme Court decision on abortion into which Mr. Kennedy inserted a new definition of liberty. Where Thomas Jefferson had grounded human liberty in self-evident truth, Mr. Kennedy holds that the mere self suffices.
“At the heart of liberty,” he wrote, “is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Now he has followed through. In Obergefell v. Hodges, the court substitutes for the laws passed by the people acting through their state legislatures a new constitutional right to “dignity” based on the court’s “better informed understanding.”
Back when poor Harry Blackmun in Roe v. Wade established a right to privacy that likewise appears nowhere in the Constitution, he wrote under the conceit that his decision would resolve the issue once and for all. Instead, his 1973 ruling launched the culture wars.
Obergefell is Roe on steroids. Roe legalized a market for abortion for those who wanted them and those who provided them. It was qualified by conscience protections plus riders attached to federal legislation greatly limiting the use of taxpayer dollars to underwrite the practice. So Roe didn’t demand much of those on the other side—or on the sidelines.
Obergefell is another thing altogether. In one of the great flimflams of American life, it is a prescription for endless litigation smuggled in under libertarian clothing. This began with the opening question put to all those who held the classic view of marriage: What can it possibly matter to you, they were asked, if two men or two women who love each other call their relationship marriage?
We learned that it matters a great deal.
It matters to Brendan Eich, who was forced to resign last year as CEO of the company he co-founded after it became public that he had donated $1,000 to Proposition 8, the successful California ballot measure banning same-sex marriage.
It matters to Chick-fil-A, which in 2012 saw the mayors of Chicago and Boston declare the restaurant chain had no place in their cities because its chief executive held the same view of marriage that Barack Obama held until very recently.
It matters to Catholic Charities, which in several states has been forced out of the adoption business either because the charity does not offer same-sex spousal benefits or declines to place children for adoption with same-sex couples.
It matters for cake bakers, photographers, florists, jewelers and pizza-parlor owners who happily serve gay customers but draw the line at assisting gay weddings.
Finally, it matters to all religious schools and religious institutions. Give the Obama administration its due: The president’s solicitor general admitted during the Obergefell oral argument that a victory for same-sex marriage would put the tax-exempt status of such institutions on the chopping block.
The reason for all this is that the right for men to marry men or women to marry women is only half of the equation—and not even the most important half at that.
The other half involves antidiscrimination statutes and regulations, not to mention the discretion of federal, state and even private bureaucracies regarding everything from funding and accreditation to tax exemption.
In short, there is nothing live-and-let-live about the way this movement has operated the past few years, and to pretend otherwise requires a willful blindness. Now, with Obergefell, the full furies have been released.
As Justice Samuel Alito suggested in his dissent, thousands of Americans who never dreamed that the issue would affect them will soon get highly personal lessons in how the legalization of same-sex marriage by judicial fiat threatens their schools, their institutions and even their livelihoods. This is not your father’s culture war.
A century ago, another Supreme Court justice famously wrote that the Constitution “is made for people of fundamentally differing views.” How far we have traveled since.
Those seeking to crush all dissent from the new judicial orthodoxy on marriage will not always win, not least because the right to the free exercise of religion—in bald contrast to Mr. Kennedy’s right to dignity—is in fact in the Constitution. Still, however individual cases may turn out, by foreclosing the option for democratic debate and compromise the Supreme Court has ensured a bitter national harvest.
Welcome to Justice Kennedy’s world. Where upholding the Kennedy definition of liberty—the right to define your own truth—turns out to mean denying that same right to millions of Americans who define marriage and truth in a way different from his.