Thursday, June 27, 2013

The case for excommunicating Anthony Kennedy

Anthony M. Kennedy, Associate Justice of the United States Supreme Court, lists his religious affiliation as Roman Catholic. Judging from the language of his majority opinion in United States v. Windsor, the High Court ruling which invalidated section 4 of the Defense of Marriage Act (DOMA), his Catholicism has about as much influence on his judicial temperament as it had on the political philosophy of a prominent Massachusetts political family which shares his surname. As Matthew J. Franck at On the Square points out, Justice Kennedy seems to think he knows the heart and mind of the authors of so odious a law.
But Justice Kennedy could not be bothered with sorting out just which level of scrutiny should apply, or how the Court’s Fifth and Fourteenth Amendment precedents on equality bore on the case at hand. He resorted instead to the fallacy of the argumentum ad misericordiam, a fallacy he magically redoubled with a non sequitur. The argument is that for those same-sex couples married under state law but disadvantaged under DOMA’s Section 3 non-recognition of their marital status under federal law, the chief injury they suffer is hurt feelings, a “dignitarian” harm. It follows—for Justice Kennedy, who has his own private logic—that it must have been the motive of the legislators who passed DOMA to hurt their feelings (never mind that such questions of motive are not supposed to dispose of constitutional questions). Therefore—again, if you are Justice Kennedy it’s a “therefore”—DOMA’s Section 3 is based on “animus,” and that alone is sufficient to invalidate it.
In a blistering dissent, Justice Antonin Scalia (also a Roman Catholic) upbraids his colleague for demeaning the institution of the Court by resorting to such overheated rhetoric.
But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence— indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.
The rebuke is well-deserved, according to Franck.
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.
It is, of course, no secret that the Catholic Church, as well as many orthodox Protestant bodies, has been at the forefront of resisting the "progressive" redefinition of marriage. Thus, Justice Kennedy's "contemptible contempt" would appear to be aimed squarely at the church in which he claims membership. Whether or not he is a regular attender at Mass, I do not know. However, his disdain for the principled teaching of the church which, despite revisionist historical claims to the contrary, has had considerable influence on Western jurisprudence with regard to marriage, is every bit as scandalous as the serial misrepresentations of church teaching on abortion which have resulted in the excommunications of public figures such as Nancy Pelosi and Kathleen Sebellius. It would seem reasonable that similar disciplinary measures be taken against Justice Kennedy. Declaring one's own church an enemy of the human race must certainly be grounds for excommunication.

The Ambrose Precedent seems most appropriate here.