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.

Scalia leaves no doubt about his position on same sex "marriage"

The Supreme Court will wait until tomorrow, the final day of its session, to hand down its much anticipated ruling on same sex "marriage." However, Justice Antonin Scalia has already made his views on the subject, as well as his views on the limited role of the judicial branch, crystal clear.

Let us pray his views represent the majority of the Court.

As the Supreme Court prepares to rule this week on the legality of federal and state bans on same-sex “marriage,” Justice Antonin Scalia has said there is no “right to homosexual conduct” granted by the United States Constitution.

Scalia, 77, told an audience of lawyers and judges at the North Carolina Bar Association Friday that matters of morality should be decided by the public, not unelected judges who set themselves up as “moral arbiters.”

According to Scalia, moral issues such as gay marriage have no “scientifically demonstrable right answer” and thus have no business being decided by the court. Instead, society must determine as a whole what they deem moral and acceptable and make laws that reflect that.

Scalia made his point with humor, joking that as a judge, “I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged.” But, he quickly added, “Rather, I am questioning the propriety, the sanity of having a value-laden decision such as this made for the entire society by unelected judges.”

Scalia, a 1986 appointee of President Reagan and now the longest-sitting member of the high court, has long maintained a strictly originalist view of the Constitution, insisting that it must be interpreted through the lens of its authors’ intentions. He once told an audience at Southern Methodist University that far from being a “living document,” the Constitution is, “dead, dead, dead.” On Friday, he told the North Carolina lawyers that judges who find rights to “homosexual conduct” or abortion in the Constitution are in error.

“When the Constitution was adopted, all those acts were criminal throughout the United States and remained so for several centuries,” said Scalia. In particular, he cited “laws against private consensual sodomy … that existed in perfect conformity with the Constitution for over 200 years.”

He slammed the Court’s 1973 Roe v. Wade decision legalizing abortion as an egregious example of judicial moralizing he believes was rooted in a flawed vision of the Constitution as a living document.

He expressed a similar sentiment in a 2011 interview with California Lawyer, saying “You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law.”

“That’s what democracy is all about,” added Scalia. “It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”