, Deseret News
This week the U.S. Supreme Court inserted itself into the heart of America's contentious and evolving national conversation about the nature of marriage. But instead of offering a thoughtful framework for the accommodation of the complex moral issues and the many legitimately engaged voices involved in that conversation, Justice Anthony Kennedy, writing on behalf of five justices, borrowed the phraseology of constitutional law to issue a polemical ultimatum against those who cherish how traditional marriage unites men and women for the benefit of children.
Kennedy's decision in Windsor v. United States, a challenge to the federal Defense of Marriage Act, was needless, thoughtless and damaging.
Needless because the court should not have even reached the merits of the so-called case before it; thoughtless because it failed to provide a recognizable rationale for its holding; and damaging because it has the effect of stifling meaningful dialogue about the nature and purpose of marriage.
Justice Antonin Scalia, joined by Chief Justice John Roberts and Justice Clarence Thomas, argued powerfully in dissent that the Supreme Court lacked jurisdiction to offer a substantive opinion in the case because of how the litigants, instead of having a live controversy to resolve actually agreed with one another about the lower court outcomes. There was nothing to appeal. Nonetheless, a plausible enough case for jurisdiction obviously won the day and the majority of the court chose to reach the merits of the case in a novel approach to justiciability.
Kennedy's meandering opinion failed to provide a coherent rationale for its holding. Kennedy raised concerns about the states' special power to regulate marriage within our federal system, but didn't decide the case on the basis of federalism. He discussed issues of unequal classifications, but didn't ground the decision within recognizable standards of equal protection jurisprudence. He suggested that fundamental liberty interests are at risk but couldn't elucidate the history and tradition normally required to assert vigorous judicial protection of unarticulated liberties.
How the court ultimately grounded its decision, however, by castigating supporters of traditional marriage will stifle meaningful and needed ongoing dialogue. Kennedy's opinion asserts that when Congress passed DOMA in 1996, codifying for purposes of federal law the opposite-sex attributes of marriage that had been unquestioned in virtually all human societies, a majority of Congress and President Bill Clinton (who signed the act into law) acted with animus and malice that could only have been motivated by the intent to disparage, stigmatize and demean same-sex couples.
But, contrary to such reasoning, supporting traditional marriage is not the equivalent of disparaging, injuring, degrading, demeaning or humiliating homosexuals.
Kennedy's opinion can't contemplate that there are citizens and lawmakers who, on the basis of experience, social science, neuroscience, logic or theology sincerely believe that there is something positive and irreplaceable for children when biological parents are united into a nurturing household and who simultaneously believe it is important to protect the individual worth and dignity of their gay and lesbian friends.
Ours is a morally complex and pluralistic world, where some priests, whose theology only contemplates marriage as between a man and a woman, also seek to eliminate discrimination against gays and lesbians; where some ministers who feel enjoined by conscience to teach a scriptural standard of sexual rectitude also actively work, pray and counsel with homosexuals in their communities; and where some LGBT activists acknowledge that there is something unique and special about an intact biological family.
But Kennedy's opinion ignores this complexity and castigates any who might fret about redefining marriage as motivated by animus. This one-dimensional view uses the rhetorical power of the court to bully those who, for example, seek an honest and fact-based discussion about how the innovation of same-sex marriage might affect the well being of the increasingly unstable American family. And it has grave implications for the rights of conscience and the religious freedoms of those who believe that the traditional ideal of conjugal marriage is a transcendent truth.
Historically, it has been our republican institutions of representative government rather than our unelected courts that have done the best job of balancing, tempering and accommodating passionate competing interests into accommodative policies.
To that end, instead of judicial decrees, we desperately need more hands reaching across legislative aisles in a spirit of pragmatism and healing. States seeking to protect traditional marriage would do well to protect the dignity and civil rights of their gay and lesbian citizens. States seeking to extend the benefits of marriage to same-sex couples would do well to protect the religious freedoms of those whose conscience opposes a redefinition of marriage. And across the nation, all would benefit from increased fidelity to marital vows and loyalty to family.