You recall the immortal distinction, graven into our cultural memory by James Bond. 007, as he is fondly called, wanted his martinis: “shaken, but not stirred.”
One might fairly apply this pithy piece of wisdom to the recent Supreme Court decision on gay marriage. Justice Kennedy’s words stirred many people, but left others shaken.
Justice Kennedy’s opened his opinion with the following stirring statement:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between persons of the opposite sex.
To which Justice Scalia, in his dissent, replied that he had been shaken, but not stirred:
If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.
If I may take exception to the view of a man who is a great aphorist himself, I would add that Justice Kennedy’s opinion would never be good enough to make it into a fortune cookie. If it did, the unfortunate soul who opened it up would be most likely to laugh at the absurdity of it all. As for the head-in-a-bag trope, Scalia is cleverly pointing out that Kennedy's opinion is shameful.
Surely, one needs to mention, if only to avoid misunderstandings, that those who dissented from the Kennedy opinion did not oppose same-sex marriage. They asserted that it was a matter for public debate and discussion, accompanied by legislative action. Since the general will of the populace has been quickly moving toward legalizing it, the dissenting justices saw no reason to take the matter out of the marketplace of ideas and effectively shut down debate.
After all, there's more it than the way things are seen in the metaphoric eyes of the law.
And yet, one sympathizes with Scalia’s larger point about freedom. The notion that individuals are free to define and express their identities is pop psychology and postmodern critical theory. More accurately, it’s mental drool.
When Kennedy added a few more freedoms to marriage, he went further off the rails of rational thought:
The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.
One expects better of the Supreme Court. In truth, freedom comes in many different shapes and forms. Free love is not the same as free will. Freedom from responsibility is not the same as freedom for responsibility. Free will is not the same as free lunch. And, of course, free expression and the free trade in ideas do not constitute a free-for-all.
By extending the concept of freedom indiscriminately Justice Kennedy has sowed confusion.
As for Kennedy’s musing about pop psychology, it’s one thing to say that marriage has evolved to include the possibility that a couple be in love. It’s quite another to say that the “nature of marriage” is to grant access to a freedom for intimacy and spirituality. In truth, Scalia pointed out, marriage circumscribes and restricts your access to intimacy. It limits your freedom to covet your neighbor and to commit adultery.
In the past Americans believed that intimacy and sexual freedom were divine rights that people could practice premaritally and extramaritally. What happened to all that?
Unfortunately, Kennedy’s idea makes no sense within the context of gay marriage. If gays were free to create themselves as they wished they could recreate themselves as straights.
Admittedly, some people who are involved in homosexual activities are not, strictly speaking, gay, but homosexuality, nearly everyone will agree, is not a choice. It is a natural predisposition.
If Kennedy meant that gays should be allowed to define themselves as straight, thus, to marry as though they were straight he was suggesting that gay relationships, those that differ from socially recognized marriages, are somehow inferior to marriage.
One notes that Kennedy also mentioned, rather mindlessly, that the alternative to marriage was loneliness.
In fact, once you enter into the marital institution that institution defines and delimits your relationship. Those who have avoided entering into the institution of marriage have done so in order to gain a greater liberty in defining their relationship. Feminists, for example, have insisted that marriage is an oppressive institution, one that would unduly constrain the exercise of their freedom.
Dare we mention the obvious point, that a married couple is not free to change the definition of their marriage without passing through a judicial process called divorce.
Kennedy seems to have granted us the liberty to take liberties with reality.
One ought to note that the Supreme Court decision has not transformed reality. It has changed the way that certain couples are treated “in the eyes of the law.” The law can confer dignity and it can deny dignity, but it is not the only arbiter of the way dignity is conferred or denied.
Most Americans would probably agree that the law should be blind to gender differences. And yet, the problem is not so much the way it looks to the law, but the way it looks to people, here, there and everywhere.
Keep in mind, marriage is a universal institution. If Jack and Jill are married in Timbuktu they are recognized as married everywhere else on the planet. The same is not true of same-sex couples. It is unlikely that it will be true of same-sex couples in our lifetime. In America, it would be closer to realization if the people, through their votes and representatives, had decided the case.