Working on a wedding cake. It it art? Expression? Free speech? Just a cake? And if you refuse to bake it, is that speech. Oh, the tangled web we weave. . .
People wanting to debate that, will have to discuss it outside of this thread. . . assuming they can, because this post is about whether you can do that, and how you can do it, maybe.
No, this post is about what happens when the Supreme Court doesn't think out the results of its opinion and issues what at least some of its Justices no doubt know isn't an opinion that's well founded in the law, but rather which puts them out ahead of a social movement and allows them to claim for themselves a victory which might have, or might not have, come about otherwise, but which if it did, rightfully belonged to other people and not the Justices.
No, this post is about what happens when the Supreme Court doesn't think out the results of its opinion and issues what at least some of its Justices no doubt know isn't an opinion that's well founded in the law, but rather which puts them out ahead of a social movement and allows them to claim for themselves a victory which might have, or might not have, come about otherwise, but which if it did, rightfully belonged to other people and not the Justices.
And so we start with a concluding statement in that opinion.
Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons. In turn, those who believe allowing same-sex marriage is proper or indeed essential, whether as a matter of religious conviction or secular belief, may engage those who disagree with their view in an open and searching debate.
Obergefell v. Hodges, 576 U.S. ___ (2015)
And now we'll find out if Justice Kennedy is made into latent prevaricator or a fool as well as having a poor attachment to jurisprudence. And that will depend on what will be his probable swing vote in Masterpiece Cakeshop, Ltd. It'll certainly be a test of his legal abilities and will likely cause him to be regarded as a fool by some segment of the American public, although which one that will be has yet to be determined. Having made something unworkable and unfair, he must now do something unworkable that will be perceived as unfair. It didn't have to be that way.
If his swing vote holds that a person holding an "utmost, sincere [religious] conviction"* prohibiting him from attending to a same gender wedding in some fashion can be compelled to do so in spite of those beliefs, the near concluding paragraph of Obergefell will have proven to be completely false, as opponents of Obergefell feared it would be. If he holds the other way around, Obergefell will start to descend into the unworkable or, alternatively, it'll be a big turn in direction on implied protected speech wrecking much of that body of law. Any way the court goes, American democracy will be hurt and the legacy of Kennedy will be all the more tarnished.
The issue, in practical terms, is this. Can a person with deep religious convictions be compelled to do what is regarded in theological terms as "cooperation with evil", if the United States Supreme Court, or at least five of its members including the most aged amongst them, feel, mostly based on trying to be hip and cool, that it isn't evil, with evil in this context meaning something that the actor believes to be morally wrong.
Nearly every governmental decision of this type comes to be regarded as a horror in later more sober years, but most people will just go along with it at any one time. Some won't. Those who won't are regarded as heroes later, but at the time they're reviled if they won't back down and have to be reported to some government body, as in this case a cake baker was, so that they can be strong armed into social compliance. The question, therefore, is strong arming people who oppose same gender marriage by refusing to lend their services to it something the Constitution cannot tolerate, particularly if it is the course of the free exercise of their religion?
Hold on a moment, some are thinking, did you say;
Just like the Hollywood Ten.
The Hollywood Ten? You mean those guys accused of being Communists who wouldn't back down? Are you rally comparing, you may be thinking, accused Communists with a Fundamentalist Christian baker?
Well, yes I am, even though, as the ten really were Communists or fellow travelers, not just accused Communists, I don't think these folks would share a common view on anything.
And here's why.
Today nearly everyone takes the position that Senator McCarthy was a horrible dude because he accused people of being Communists and they weren't. Not so. He accused Communists of being Communists.
And that's besides the point.
We're so enamored of our heroes that we forget why they were heroes in the first place and place on them universal good qualities and place ourselves on their side. More often than not heroes are the few people who aren't willing to just go along with everyone else and are reviled by everyone else. And more often than not they aren't really all that universally admirable. It's their stand, that protects us all, that makes them admirable. When we look back at people accused of being Communist in the 1930s and 1940s, during the 1950s, chances are really good that they really were Communists. We admire their stand, not the thing they were standing for, as the thing they were standing against was so wrong. It's un American and unjust to require people not to be Communists. Yes, Communism is bad, but that doesn't mean that a person can be prohibited from being one, or should be so prohibited.
And that's how this thing works out as well. Whether or not you agree with the baker, telling people who they must bake for is just flat out wrong. So that get us back to the first question that we'll have to answer thanks to the situation we're now in, which is a completely predictable question.
And now we'll find out if Justice Kennedy is made into latent prevaricator or a fool as well as having a poor attachment to jurisprudence. And that will depend on what will be his probable swing vote in Masterpiece Cakeshop, Ltd. It'll certainly be a test of his legal abilities and will likely cause him to be regarded as a fool by some segment of the American public, although which one that will be has yet to be determined. Having made something unworkable and unfair, he must now do something unworkable that will be perceived as unfair. It didn't have to be that way.
If his swing vote holds that a person holding an "utmost, sincere [religious] conviction"* prohibiting him from attending to a same gender wedding in some fashion can be compelled to do so in spite of those beliefs, the near concluding paragraph of Obergefell will have proven to be completely false, as opponents of Obergefell feared it would be. If he holds the other way around, Obergefell will start to descend into the unworkable or, alternatively, it'll be a big turn in direction on implied protected speech wrecking much of that body of law. Any way the court goes, American democracy will be hurt and the legacy of Kennedy will be all the more tarnished.
The issue, in practical terms, is this. Can a person with deep religious convictions be compelled to do what is regarded in theological terms as "cooperation with evil", if the United States Supreme Court, or at least five of its members including the most aged amongst them, feel, mostly based on trying to be hip and cool, that it isn't evil, with evil in this context meaning something that the actor believes to be morally wrong.
Nearly every governmental decision of this type comes to be regarded as a horror in later more sober years, but most people will just go along with it at any one time. Some won't. Those who won't are regarded as heroes later, but at the time they're reviled if they won't back down and have to be reported to some government body, as in this case a cake baker was, so that they can be strong armed into social compliance. The question, therefore, is strong arming people who oppose same gender marriage by refusing to lend their services to it something the Constitution cannot tolerate, particularly if it is the course of the free exercise of their religion?
Hold on a moment, some are thinking, did you say;
Nearly every governmental decision of this type comes to be regarded as a horror in later more sober years, but most people will just go along with it at any one time. Some won't. Those who won't are regarded as heroes later, but at the time they're reviled if they won't back down and have to be reported to some government body, as in this case a cake baker was, so that they can be strong armed into social compliance.Yes, I sure did. And I'll go one step further. Folks like the owner of Masterpiece Cakes will be regarded as heroes because they are in context, and it doesn't matter if you agree with them or not. They're heroes not because of what they believe, but because they're taking a stand in the face of massive government opposition, massive movement opposition, and the quite indifference or cowardice of everyone else.
Just like the Hollywood Ten.
Screenwriter and Communist (and perhaps ironically here a Coloradoan) Dalton Trumbo in front of the House Committee on Un American Affairs. He really was a Communist in the 1940s. Should he have been punished for that? Should you be punished for refusing to bake a cake? You can't answer yes to one and no to the other.
The Hollywood Ten? You mean those guys accused of being Communists who wouldn't back down? Are you rally comparing, you may be thinking, accused Communists with a Fundamentalist Christian baker?
Well, yes I am, even though, as the ten really were Communists or fellow travelers, not just accused Communists, I don't think these folks would share a common view on anything.
And here's why.
Today nearly everyone takes the position that Senator McCarthy was a horrible dude because he accused people of being Communists and they weren't. Not so. He accused Communists of being Communists.
And that's besides the point.
We're so enamored of our heroes that we forget why they were heroes in the first place and place on them universal good qualities and place ourselves on their side. More often than not heroes are the few people who aren't willing to just go along with everyone else and are reviled by everyone else. And more often than not they aren't really all that universally admirable. It's their stand, that protects us all, that makes them admirable. When we look back at people accused of being Communist in the 1930s and 1940s, during the 1950s, chances are really good that they really were Communists. We admire their stand, not the thing they were standing for, as the thing they were standing against was so wrong. It's un American and unjust to require people not to be Communists. Yes, Communism is bad, but that doesn't mean that a person can be prohibited from being one, or should be so prohibited.
And that's how this thing works out as well. Whether or not you agree with the baker, telling people who they must bake for is just flat out wrong. So that get us back to the first question that we'll have to answer thanks to the situation we're now in, which is a completely predictable question.
The question, therefore, is strong arming people who oppose same gender marriage by refusing to lend their services to it something the Constitution cannot tolerate, particularly if it is the course of the free exercise of their religion?The second question is did we even need to get here? The answer to that question is very clearly no, and there's very clearly a way out of this now, but the Supreme Court, ossified in decaying age, the decay of legal thought and infirm, won't go there. More on that in a moment.
A report from Scotusblog on the argument:
Argument analysis: Conservative majority leaning toward ruling for Colorado baker (UPDATED)
Obergefell was problematic, and indeed devoid of any grounding in the law, right from the onset. The very long history of the U.S. Constitution in relationship to marriage makes that very plain that Obergefell isn't based on the law, but on Kennedy and his fellow travelers trying to jump out ahead of what they perceived to be a social movement that was going to prevail, thereby claiming the laurels that would have otherwise been claimed by those who prevailed democratically. It was a coup, and an ill advised one they likely thought harmless or beneficial. It would take legislative enactment to redefine marriage in any sort of valid way, assuming that a legislative enactment on what is a pre legislative institution can be made valid. Indeed, prior to Obergefell the courts only asserted that legislatures had the right to regulate marriage, not to completely redefine it and there can be little doubt that prior to the 20th Century they would not have conceived of themselves as having such a right.** A judicial reworking simply smacks of the aged trying to get ahead of what they think is going to occur in history anyway. And they botched it.
At the time it was insisted that the only result of Obergefell would be to allow same gender couples to marry, as long as that meant that many of the instances of marriage were wholly ignored. That view was extremely naive as marriage touches everything and its grounded in an incorrect philosophical and physical understanding of marriage. It very rapidly ceased to be the case. Already the concept that a person be allowed to criticize the holding as contrary to natural law is being shouted down in the press and in some places, such as Colorado, people are now compelled to serve same gender marriages in spite of having religious objections to what was regarded as deeply unnatural only very recently. It smacks very strongly of reeducation camps, and necessarily so. Justice Kennedy's assertion that religion would not be impeded have proven to be false, so far. Indeed, his claim that people could even advance the opposite opinion has very quickly proven false and "it's decided" is the shout down cry of those whose legislative efforts were taken from them as they are forced to pin their hopes on the incorrect assumption that a decree by the Supreme Court actually decides things in society. And they had to be. To rework an ancient institution by judicial decree requires an element of force and is unlikely to work even then. A society, in spite of Kennedy's naivete, cannot suddenly start to think in a different fashion whole-scale overnight in spite of what a bunch of old robed people declare that they should. Indeed, as Court's in democratic nations are only respected by the average person in a highly qualified fashion, such a decision is more likely to harden opposition on the side that looses.
The degree to which Obergefell is deeply anti democratic and offensive to American concepts of liberty is easily demonstrated by imagining only slightly different versions of the same scenario. Would the law hold that a couple wanting a ham dinner for Easter, or perhaps for their wedding, be allowed to compel a Jewish deli to provide it? Can Orthodox Jews demand that the rest of the world shut completely down on Saturdays? Can a couple getting married on Saturday demand that an Orthodox Rabbi perform it? Can a same gender couple demand that a Priest perform a ceremony that he finds contrary to his faith. Can a person who simply feels that same gender marriage is contrary to nature without even going into the topic of religion be silenced for "hate speech" just for expressing his views?**
If Kennedy can find his way around to holding that bakers must bake cakes that are contrary to their convictions, the contempt for this decision will grown exponentially while, as the same time, it's hammer like reach will hit harder.** The backers of Obergefell now no longer argue that they only want the same rights that others want, which in fact they already actually had. Instead, the backers will, and indeed are, demanding that everyone accept their view completely and that those who don't hold them shut up. It's a McCarthyite approach. Are you now, or have you ever been, an opponent of same sex marriage? Senator Joe. . . your seat is waiting.
At the end of the day the Supreme Court will issue a limited but important decision here. Chances are, based upon the early reports, that this decision will hold that the religious views of people are protected and they cannot be compelled by the state to go against them, although exactly how it gets there is far from clear. Liberals will howl as a result and will claim that Obergefell has been gutted and make analogies that are strained and which serve to undercut prior legitimate victories. But it's not impossible that Kennedy, confronted with the dog's breakfast of his decision and notable already for his sensitive feelings, will go the other way, in which case the significant section of the populace that holds this decision in contempt will grow in the level to which it despises it and refuses to acknowledge it, and by extension everything the Court does.
Indeed, Kennedy's decision did more than any other single act to put us into the political situation we are now in, in which a large section of the country has no faith whatsoever in political institutions. If he's amazed by our times, he should realize that he advanced the clock to cause them. And if we actually end up impeaching an elected President and removing him from office for the first time in the nation's history, thereby putting the survival of the republic in real doubt, Anthony Kennedy can get the blame for getting us to that point to at least a significant degree. Everyone who wonders how we ended up with Trump should start carrying an Anthony Kennedy card.
An awareness of at least some of this is why the court is clearly tempted not to reach a decision on free excise of religion grounds at all but, rather, on the topic of free speech. If it does that, it will instead take a look at the question of whether or not baking a wedding cake is "speech". Indeed, a lot of the various justice's questions were on that topic.
But that's really dangerous ground for the court to be treading on, and if goes in that direction, it will have opened up a bunch of case law that it previously regarded as settled.
It was Kennedy, after all, who authored the opinion that held burning a flag is free speech, an opinion which I agree with. But that opinion falls in with a bunch of other opinions that hold all sorts of things are speech. Art can be speech. Dance can be speech. Pornography, as long as it isn't obscene, is speech, as long as it contains some serious "scientific, literary or artistic merit". If Hustler magazine is protected speech, why wouldn't a wedding cake be protected speech? Or if burning a flag, which isn't speech at all of course but an act, is protected speech, why wouldn't decorating a cake be speech? Or maybe refusing to decorate a cake is speech?
Ironically, in the recent oral arguments, it was the liberal justices who scoffed at that idea. And this shows what a disaster Obergefell is. Justices who would have held that dancing flag burning pornography is speech, now scoff at the idea that decorating a cake is art and therefore speech. But in doing that, all the rest of it goes out the window at the same time.
Oh, what tangled web we weave . . .
This all stems, of course, from the First Amendment to the United States Constitution, which provides:
It all sounds rather surreal, but that's where we are on this.
Quite a few commentators believe that what the framers meant in regards to this provision is that Congress couldn't abridge political speech. Maybe it could, therefore, prevent other types of speech. The framers sure acted like they could as libel laws were more more restrictive at the time. For that matter, Congress had no problem with running out and abridging speech right off the back with the original sedition act, which seems pretty darned unconstitutional.
Anyhow, the Court here really focused on "art". And that suggest that the Court was looking for the easy way out, which it often does as a matter of interpretation and which it should. The way this would work would be this. If a cake is just a cake, and not art, well then its just food, and not speech.
If you go there, then Colorado can legally argue that a baker can't make a decision not to sell a cake based on his beliefs as a cake is just a cake. It would be like NAPA refusing to sell auto parts to a gay couple on their way to their wedding if their car broke down, maybe.
Or maybe not.
The problem there is that if a wedding cake isn't art, then much of the other obvious baloney that court's have determined to be protected speech over the years must fall. So here too, Kennedy has set everyone up, including himself on one of his mostly dearly held opinions. If a cake is a cake. . .well a flag might be a flag. And then Kennedy's decision in Texas v Johnson is either out the window, or now dubious.
The sad thing there is that Texas v. Johnson is correct in my view. But if a majority on this Court holds a cake is a cake, it looks like that case has been overruled sub silentio. If the Court takes steps from that not being the case, it looks like they're making things up as they go. . .as they'd be making things up as they go.
Indeed, the Justices who sort of sneered at the idea that a cake is anything more than a cake already look like elitist fools, something that some people are increasingly holding regarding the Court. The Court can ill afford that as at some point people just flat out disregard it. At that point, it become pretty ineffectual. So the Court has to really hold, if it doesn't want to look that way, that a cake can be art. Or that refusing to bake a cake can be speech. . . or maybe refusing to bake a cake is an example of the free exercise of religion.
Whichever way it goes, it cuts a big gaping hole into the logic of something it's already held. It has no choice with any of these options but to look pretty foolish.
An awareness of at least some of this is why the court is clearly tempted not to reach a decision on free excise of religion grounds at all but, rather, on the topic of free speech. If it does that, it will instead take a look at the question of whether or not baking a wedding cake is "speech". Indeed, a lot of the various justice's questions were on that topic.
But that's really dangerous ground for the court to be treading on, and if goes in that direction, it will have opened up a bunch of case law that it previously regarded as settled.
It was Kennedy, after all, who authored the opinion that held burning a flag is free speech, an opinion which I agree with. But that opinion falls in with a bunch of other opinions that hold all sorts of things are speech. Art can be speech. Dance can be speech. Pornography, as long as it isn't obscene, is speech, as long as it contains some serious "scientific, literary or artistic merit". If Hustler magazine is protected speech, why wouldn't a wedding cake be protected speech? Or if burning a flag, which isn't speech at all of course but an act, is protected speech, why wouldn't decorating a cake be speech? Or maybe refusing to decorate a cake is speech?
Ironically, in the recent oral arguments, it was the liberal justices who scoffed at that idea. And this shows what a disaster Obergefell is. Justices who would have held that dancing flag burning pornography is speech, now scoff at the idea that decorating a cake is art and therefore speech. But in doing that, all the rest of it goes out the window at the same time.
Oh, what tangled web we weave . . .
This all stems, of course, from the First Amendment to the United States Constitution, which provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.So Congress, and by later incorporation the states, cannot abridge free speech. And if it can't do that, Colorado can't tell people when to bake a cake. Can it tell people when they can't bake a cake, or when they must bake a cake?
It all sounds rather surreal, but that's where we are on this.
Quite a few commentators believe that what the framers meant in regards to this provision is that Congress couldn't abridge political speech. Maybe it could, therefore, prevent other types of speech. The framers sure acted like they could as libel laws were more more restrictive at the time. For that matter, Congress had no problem with running out and abridging speech right off the back with the original sedition act, which seems pretty darned unconstitutional.
Anyhow, the Court here really focused on "art". And that suggest that the Court was looking for the easy way out, which it often does as a matter of interpretation and which it should. The way this would work would be this. If a cake is just a cake, and not art, well then its just food, and not speech.
If you go there, then Colorado can legally argue that a baker can't make a decision not to sell a cake based on his beliefs as a cake is just a cake. It would be like NAPA refusing to sell auto parts to a gay couple on their way to their wedding if their car broke down, maybe.
Or maybe not.
The problem there is that if a wedding cake isn't art, then much of the other obvious baloney that court's have determined to be protected speech over the years must fall. So here too, Kennedy has set everyone up, including himself on one of his mostly dearly held opinions. If a cake is a cake. . .well a flag might be a flag. And then Kennedy's decision in Texas v Johnson is either out the window, or now dubious.
The sad thing there is that Texas v. Johnson is correct in my view. But if a majority on this Court holds a cake is a cake, it looks like that case has been overruled sub silentio. If the Court takes steps from that not being the case, it looks like they're making things up as they go. . .as they'd be making things up as they go.
Indeed, the Justices who sort of sneered at the idea that a cake is anything more than a cake already look like elitist fools, something that some people are increasingly holding regarding the Court. The Court can ill afford that as at some point people just flat out disregard it. At that point, it become pretty ineffectual. So the Court has to really hold, if it doesn't want to look that way, that a cake can be art. Or that refusing to bake a cake can be speech. . . or maybe refusing to bake a cake is an example of the free exercise of religion.
Whichever way it goes, it cuts a big gaping hole into the logic of something it's already held. It has no choice with any of these options but to look pretty foolish.
Which is why a proper course of action, and one that could be done right now, would be to repeal Obergefell and return the topic of same gender marriage to the legislature where it was controversial, but not in the fashion it currently is, as embarrassing to the Court as that would be.
The basic Constitutional issue is now before the Court, if it wishes to take it up. Four out of the Five Justices opposed this. Kennedy is now confronted by the fact that his desire to let a thousand happy marriage daisies bloom is instead a Constitution mess that cannot be handled under our system without doing violence to the law, to the Constitution, to the beliefs of millions of people and to an expanded concept of free speech. He could bring it up and simply say that upon further reflection it is clear that the earlier decision was wrong.
People would howl, but that would take this issue back to the legislatures where it belongs.
And that, and here's where things get really sticky, would actually require people to discuss what marriage is. And few people are prepared to do that in the early 21st Century. Anthony Kennedy certainly isn't, based upon his anemic writing. He thinks that it's about love and flowers and not being lonely. It's about none of those things, even if all of those things are ideally an element of marriage.
Marriage is not an institution created by the state and preexisted any state of any kind, in a strictly male female relationship, as a way of handling sex and its byproducts in a conventional sexual relationship. For that reason, in spite of the focus on the minor details that make up differences from culture to culture, it's remarkably consistently the same in its basic nature in every culture.
Chances are extremely high that if the underpinning issues had been debated in the law prior to the 20th Century this would have been noted and the chances are very high that most Courts would have held that marriage could be regulated, as the U.S. Supreme Court has held, but that it can't be redefined as its a natural institution incapable of being redefined except by nature. Kennedy, who grounded his views on the idea of Constitutionally protected love, wouldn't be capable of grasping an argument such as that.
And what that means, and here's where many in the opposing camp would grow uncomfortable, if we're going to redefine marriage, we must first define marriage, and if we do that, and find that its a natural institution, maybe we need to redraft our human institutional framework, IE., our laws, to match that.
In other words, not only does same gender marriage perhaps not make any sense at all, perhaps forcing the recognition of marital obligations on people with children so that they're not forced on society makes sense. Maybe not allowing easy divorce, or divorce at all, for couples with children make sense. There'd be a lot of really hard issues to be debated in a very deep way, something that hasn't been really debated in this society since the 1530s. And debating it in the 1530s resulted in a pretty rough go of things for a really long time. Of course, you get those debates when they arrive, and we're sort of seeing the arrival of that right now.
Maybe no state role in marriage at all makes sense. If the proponents of same gender marriage, as Kennedy would have it (and not all of their arguments are so unsophisticated as his) are limited to it being about love, why does the government have any role in that? That, quite frankly, makes no sense whatsoever (and very few serious proponents of same gender marriage would in fact take that as a primary foundation of their arguments as it is so very weak as one). Maybe tying it irrevocable to children and their natural parents makes sense, from the point of view of protection of the state and the protection of children. Indeed, we might well recall that at one time the state imposed the recognition of marriage upon such couples, rather than simply conferring it upon all who wished for state validation of their relationship status.
It's deep water indeed.
And that, and here's where things get really sticky, would actually require people to discuss what marriage is. And few people are prepared to do that in the early 21st Century. Anthony Kennedy certainly isn't, based upon his anemic writing. He thinks that it's about love and flowers and not being lonely. It's about none of those things, even if all of those things are ideally an element of marriage.
Marriage is not an institution created by the state and preexisted any state of any kind, in a strictly male female relationship, as a way of handling sex and its byproducts in a conventional sexual relationship. For that reason, in spite of the focus on the minor details that make up differences from culture to culture, it's remarkably consistently the same in its basic nature in every culture.
Chances are extremely high that if the underpinning issues had been debated in the law prior to the 20th Century this would have been noted and the chances are very high that most Courts would have held that marriage could be regulated, as the U.S. Supreme Court has held, but that it can't be redefined as its a natural institution incapable of being redefined except by nature. Kennedy, who grounded his views on the idea of Constitutionally protected love, wouldn't be capable of grasping an argument such as that.
And what that means, and here's where many in the opposing camp would grow uncomfortable, if we're going to redefine marriage, we must first define marriage, and if we do that, and find that its a natural institution, maybe we need to redraft our human institutional framework, IE., our laws, to match that.
In other words, not only does same gender marriage perhaps not make any sense at all, perhaps forcing the recognition of marital obligations on people with children so that they're not forced on society makes sense. Maybe not allowing easy divorce, or divorce at all, for couples with children make sense. There'd be a lot of really hard issues to be debated in a very deep way, something that hasn't been really debated in this society since the 1530s. And debating it in the 1530s resulted in a pretty rough go of things for a really long time. Of course, you get those debates when they arrive, and we're sort of seeing the arrival of that right now.
Maybe no state role in marriage at all makes sense. If the proponents of same gender marriage, as Kennedy would have it (and not all of their arguments are so unsophisticated as his) are limited to it being about love, why does the government have any role in that? That, quite frankly, makes no sense whatsoever (and very few serious proponents of same gender marriage would in fact take that as a primary foundation of their arguments as it is so very weak as one). Maybe tying it irrevocable to children and their natural parents makes sense, from the point of view of protection of the state and the protection of children. Indeed, we might well recall that at one time the state imposed the recognition of marriage upon such couples, rather than simply conferring it upon all who wished for state validation of their relationship status.
It's deep water indeed.
But that would take a Judge who had the courage to admit he was wrong and go back on himself. And the intellect to reconsider and thrown these deep questions out into the public venue where they'd make everyone very uncomfortable.
I don't see Anthony Kennedy as that kind of guy. So this mess will go on, and on, and on until sooner or later, by one means or another, its back in the legislative arena, decades later, and after the worst Supreme Court Justice in recent memory is just a footnote in casebooks.
Funny how those who once acted, they claimed, to oppose oppression can work their way around to imposing it.
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* An interesting aspect of this is that this issue seems to be considered only in these terms, but there are those who are deeply opposed to same gender marriage on reasons other than religion. Indeed, during the period during which this movement has been spreading in the Western world its occasionally drawn opposition from individuals who are notable and who very clearly do not hold to conventional religious or moral views otherwise. And in some populations, France's in particular, the forcing of the same gender marriage has been massively unpopular with huge segments of the population that are not strongly observant, even if they are not opponents of religion. In Italy it drew the notable opposition of at least one very well known gay individual who had thought out the philosophical nature of marriage and came to the opinion that it made sense only in the heterosexual context.
Missed in all of this is that there are those who feel that same gender marriage is unsound for reasons grounded in culture, science or philosophy but who don't put the debate in the context of religion. Those people's views are simply ignored, particularly by the political left as these same individuals tend to fit into the political left.
You'd have thought Kennedy and the Supreme Court might have noted that, but the Ivory Tower nature of the upper rooms of the court would of course preclude that, dominated by the isolated elderly as it is. It's a shame that it has been noted as such opinions are important and should be considered.
**Indeed one prominent "civil rights" organization has caused organizations that oppose same gender marriage to be listed on its widely circulated list as "hate groups". And in the liberal left its commonly accepted that this issue is over, and expressing any contrary opinion simply cannot be done.
What this has caused and will cause is exactly what I feared it would. People now feel these views are being forced on them and they really detest it. The argument may descend into corners it never had to go into, with the left maintaining anyone who agrees with it deserves to be oppressed, and the right regarding those in the opposite camp as oppressors. How bad this may become may have been revealed recently when an extremely naive homosexual Wyoming legislator went out to promote her bill to redraft all of Wyoming's laws to be gender neutral, replacing "husband and wife" with spouse, and so on. She met with a brick wall of opposing and blistering comments and then went away shocked and upset. She shouldn't. In places where the law has been imposed, it's an imposition, and things like marriage really matter to people. The lines now are very hard and fast.
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