…The law, in short, is a signal from society, a badge of shame that need not be worn in public but serves nonetheless as an ever-present, nearly invisible reminder that we do not accept what they do, and never will. It serves as a quiescent rearguard against talk of other things, like gay marriage, the cacophony of which argument will now, through the media, assault our sensibilities daily, and our personal lives more intimately.
What, for example, do you think is going to happen to certain textbooks in your children’s schools? To the free speech rights of students and teachers who have moral objections to homosexual behavior? To the public posture of gay teachers of children who heretofore have found discretion the better part of a valorous “coming out?” To our civil rights laws, now that the right to a degrading sexual practice, like the right to abortion, has been enshrined in our constitutional law? Take it from there…
When I said at the beginning that this ruling renders all sex the same, some will object that I go too far. And they have a point. Even Justice Kennedy, perhaps sensing the breadth of the swath his intellectual thresher is cutting through the autumnal, once-verdant field of our moral culture, does a little dancing in the barnyard, his belated attempt to assure us that victims of rape, sexual child abuse, and incest will not find the umbrella of the law’s protection withdrawn: “The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.” Could this last refer to marriage? But how will he refuse them? The “liberty” he has granted is based purely on a right to privacy and on mutual consent. He finishes his thought: “The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives,” (the Texas law, of course, allowing them their private lives but not the public respect, which is what I suspect he finds most irksome.)
But Mr. Justice Kennedy, many homosexuals want to make marriage a practice “common to the homosexual lifestyle.” And since, in marriage, sexual intimacy (not formerly of the kind you have now given constitutional protection) seems to come with the territory, on what principle of law – not of sociology, or psychology, or of any other field of inquiry – but of law will you deny to them this most sublime of human bonds? And don’t appeal to the law’s reliance on our nation’s “history and tradition”, for you have already conceded, in your defense of personal “autonomy,” that there is no such thing, or at least that no one tradition is better than any other: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” I rather imagine that an Andrew Sullivan will have no trouble fitting marriage into his concept of existence and the mystery and meaning of human life. All he needs is another man to give consent. How will you say no?
I am not optimistic that he will, for here is the most concise rendering of his judicial philosophy I was able to find, and in his own words: “As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.” How will he say no?
How will he say no to prostitution, a consensual, adult transaction capable of being conducted purely in private?
How will he say no to adultery, a purely private, consensual, adult transaction?
Suppose a group of differently minded adults – say a man and three women, five women and three men, variorum ad infinitum – decide they’d like to marry to fulfill their concept of the meaning of life? How will he say no?
Suppose the age of consent in some state is 16, and a resident, full-blooded brother and sister decide to get it on? How will he say no? A father and his teenaged daughter? How?
The whole thing is here.