Having read the majority opinion for the Supreme’s Obergefail decision, I am now in a position to describe what Justice Kennedy’s dog gets for breakfast.
In that opinion, he did try to be nice to those who differ, but being nice and being coherent are not the same thing. He tried to head off the pc-martinets by saying that “the First Amendment ensures that religious organizations and persons are given proper protection.” Very nice, very thoughtful. And then this, one week later — the Kleins of Oregon (who had politely declined to bake a wedding cake for a lesbian phantasmagorithon) had their fine of 135K finalized by an administrative judge. Moreover, Brad Avakian, this Oregon Labor Kommissar who finalized the fine, also ordered the Kleins to “cease and desist” from talking about it. Pay the money, and put on this gag.
I have been somewhat heartened by the blowback the Supreme Court decision has been getting from Christians. It is true that we do have to figure out how to buck up our “surrender-now-and-call-it-the-way-of-the-cross” contingent, but by and large the level of noisy outrage has been fully appropriate — though we could always use a good deal more of it.
What has been remarkable is the silence of the so-called moderate liberals, the ones who are supposed to have a real commitment to free speech. (“I may not agree with what you say but will defend to the death your right to say it.”) Our earlier predictions of marriage mayhem (e.g. plural marriages) and tyrannical restrictions on religious liberty were all met with soothing reassurances, and the backs of our hands were not infrequently patted, but now, where’d they all go? The ink on the decision is barely dry, and the machinery of mandatory redefinitions is well-oiled and ready to run. Then somebody offstage said, sotto voce, “Fire that baby up.”
And the smoke pours out of the machine.
“Oh, we believe in free speech. Just not in hate speech. And hate speech is anything we don’t feel like hearing.”
If you are up to the challenge of saying, as Justice Kennedy most certainly was, that if you are lonesome in bed another dude can serve just as well, then you are also up to saying that restricted speech is just as free as it ever was, as free as a bird, as untrammeled as anything else you need a permit for.
Here is the heart of the tyranny. Everybody doesn’t have to go out and get homosexually married now. Carry on as you were. But the claim of the Court is that we all — every man jack of us — need to submit to their arbitrary redefinitions of words, as it suits them, whether or not they are exegeting the law, squaring the circle or rounding the bend. As Justice Scalia put it, memorably, “It is of overwhelming importance, however, who rules me.”
To conclude, here is a little meditative thought, taken from an extreme document penned by some radicals of yore, a thought that you might want to ruminate on while watching your fireworks tomorrow night. Just a thought.
“But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”
If you think I am overheating it . . .
“The right to marry is fundamental as a matter of history and tradition, but rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”
Or, put another way . . .
“They rise, to marry ancient sources alone. Ice cream! Who wants ice cream? They rise, as a matter of history and tradition, but remain urgent, both ancientish and alone. They rise to define a liberty that remains like the sour candy you used to be able to get, but now? — now we know better.”
Stare hard at the first sample. Where do your rights come from? Marriage is a fundamental right. It is, according to Kennedy, of transcendental importance. Great. Where do rights come from then? Not from ancient sources alone? So part of my rights, or some of them, do come from ancient sources? You say something like that, and provide no footnotes? What is the other point of origin for my rights? They rise, they emerge, they evolve, they ascend, they swell, and they undulate out of . . . what?
Any ringing truth here like “endowed by their Creator with certain inalienable rights”? No, no, not a bit of it. You, my friend, got some of your rights from unspecified ancient sources, and the rest of them were endowed upon you by a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.
You, my friend, have no constitutionally recognized liberty at all anymore. As Scalia put it, it matters who rules us. It matters what they appeal to. And it definitely matters when they locate the ground of your fundamental liberties in a legalese word salad.