Franck on the Danger of Kennedy's Decision


Matthew Franck writes in First Things:

Justice Kennedy"... It was in the less explosive, but still volatile Windsor case that the Court reached the merits, but only after considerable wrangling here too about whether DOMA could be defended in federal court by counsel retained by the House of Representatives, after the Obama administration withdrew from a legal defense of the act in court. (What is it about the cause of same-sex marriage that prompts so many of its advocates in the political class to abdicate the most elementary responsibilities enjoined by their oaths of office?) Chief Justice Roberts and Justices Scalia and Thomas would have held that in Windsor too there was no case for the Court to decide, and were thus willing to see DOMA’s challenged Section 3, enacting a federal-law definition of marriage, fall prey to an interbranch political struggle in which the president has the upper hand over Congress.

But the Windsor majority led by Justice Kennedy—which included Justices Ginsburg, Breyer and Kagan, who curiously saw a party with standing here, where they did not see one in Hollingsworth—went to the merits and overturned DOMA’s Section 3. The opinion was of a kind we are used to seeing by now from Justice Kennedy: long on windy rhetoric about “dignity” and ad hominem attacks on the basic human decency of the law’s defenders, and short on actual coherent legal reasoning from recognizable constitutional principles.

...Justice Kennedy’s Windsor opinion on the merits deserves all the scorn heaped on it by Justice Scalia’s dissent, as well as all of Justice Alito’s penetrating observations in his separate dissent that “what is marriage?” is the key question, which the people and their representatives are entitled to decide for themselves, in Congress and in the states. Kennedy’s opinion is as shabby and question-begging as they say—and then some—but the real danger lies in its contemptible contempt for the millions of Americans who disagree with a “progressive” redefinition of marriage that severs its connection to childbearing, mothering, and fathering."

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