The following comes from a July 17 story by Anne Hendershott on Catholic World Report.
Lawyers have learned that the way to frame a Supreme Court argument intended to persuade Justice Anthony M. Kennedy is to tell love stories—the kind of stories that begin with powerful barriers that threaten to thwart the lovers’ desires and dreams, but always end with “living happily ever after.” In Justice Kennedy’s world, lovers—especially gay and lesbian lovers—are just a Supreme Court decision away from a perfect life.
In his June 26th decision to strike down any barriers that would keep same sex couples from “marrying”, Justice Kennedy wrote that there is “no legitimate purpose” for federal laws keeping these couples from marrying. Going even further, Justice Kennedy stigmatizes anyone who might disagree with such marriages by writing that the federal statute that had been enacted to bar the federal government from recognizing same sex marriages was intended to “disparage and to injure.”
Putting himself in the role of protecting the same sex protagonists from the barriers imposed by those he views as bigots who want to deny happiness to those who only want to love and be loved, Justice Kennedy appears to view himself as the conquering hero of his own life story. He has said so himself. In an article for the New Republic, “Supreme Arrogance: The Arrogance of Anthony Kennedy” (June 16, 2007), Jeffrey Rosen recalls that before handing down his decision in Planned Parenthood v. Casey, the ruling that affirmed and strengthened the right to an abortion, Kennedy told a reporter, “Sometimes you don’t know if you’re Caesar, about to cross the Rubicon, or Captain Queeg, cutting your own tow line.” He then channeled Hamlet, excusing himself by saying that he needed to “brood.”
Justice Kennedy has often described himself as having been shaped by novels and plays—many of them love stories. Rosen’s New Republic article suggests that Kennedy, “apparently uncomfortable with real conflicts among real people,” took refuge from an early age in the morality tales he found in fiction. In an interview with a reporter, Kennedy once said: “I think fiction is very important because it gets us into the mind of a person. Hamlet is a tremendous piece of literature. You know Hamlet better than you know most real people. Do you know the reason? Because you know what he’s thinking. And this teaches you that every human has an integrity and an autonomy and a spirituality of his own, of her own, and great literature can teach you that.”
Born in 1936, and raised in Sacramento, California during the postwar economic boom. Justice Anthony Kennedy enjoyed a golden childhood in the golden state. According to Rosen, Kennedy once told an audience at the Academy of Achievement, “It was a wonderful town and a wonderful time.” Recalling the movie, It’s a Wonderful Life with Jimmy Stewart, Kennedy implies that such a world can be recaptured—if only the right laws are in place. Rosen’s judgment is perhaps surprising, but makes sense of Kennedy’s body of judicial judgments: “Kennedy is not a systematic thinker but a utopian moralist; and, like many sweeping visionaries, he is unwilling to accept the radical implications of his own abstractions.”
When writing his decisions, the Roman Catholic Kennedy approaches them more as morality plays, with characters who are either good or evil. The evil ones are those who impose their morality on others they wish to control. In 1996, in Romer v. Evans, Kennedy wrote the majority opinion striking down a Colorado constitutional amendment—passed by the people in that state—that would have outlawed giving gay, lesbian, bisexual and transgendered individuals status as a protected class. Kennedy wrote that the law “identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence.” For Kennedy, Coloradans who supported the amendment depriving gay men and lesbian women of special protections were motivated by “animosity” to the GLBT community.
A few years later, an even more passionate plea for the rights of same sex couples, was contained in Justice Kennedy’s decision in 2003 in Lawrence v Texas—a case challenging the constitutionality of anti-sodomy laws. Continuing his commitment to finding love in all the wrong places, Justice Kennedy’s majority opinion in Lawrence held that “when sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring.” What Justice Kennedy did not know then was that the love-story narrative surrounding the plaintiffs in Lawrence was always a lie. Flagrant Conduct: The Story of Lawrence v. Texas, a book published in March by Dale Carpenter, a professor at the University of Minnesota Law School, revealed that Lawrence was never a case about what Justice Kennedy would have defined as a loving relationship.
Catholic World Report readers may recall my story, “House of Lies” (March 26, 2013), which describes the sordid story of the plaintiffs, John Lawrence and Tyron Garner. Both men had been charged with engaging in deviant sexual activity. Realizing how difficult it would be to find a case to challenge the Texas sodomy statute, national gay-rights advocacy groups effectively repackaged the story of Lawrence and Garner’s drunken one-night-stand into a love story—with heroic lovers struggling to solidify their bond in a society that despised them.
It was a brilliant strategy, specially designed for Justice Kennedy, the lover of love stories. As Dahlia Lithwick wrote in a New Yorker review of Carpenter’s book, “Nobody had to know that the gay-rights case of the century was actually about three or four men getting drunk in front of a television in a Harris County apartment decorated with bad James Dean erotica.” And until Carpenter’s book was released in 2012, no one ever knew—including Justice Kennedy.
In his June 26th ruling on, Justice Kennedy turned his protective powers to the children of same sex couples. Implying that these children are all cowering in the shadows of a society that wants to deny them the “integrity and closeness” all families deserve, Justice Kennedy wrote of the “humiliation” such families suffer because of the laws keeping their parents from marrying.
But life is not fiction. For example, Robert Oscar Lopez, a man who was raised from the age of three by a lesbian couple, rejects the claim that the problems that the children of same sex couples face have their origins in a society that rejects them. Rather, he wrote in a Public Discourse essay, “Growing Up With Two Moms: The Untold Children’s View” (August 6, 2012), that “growing up with gay parents was very difficult—and not because of prejudice from neighbors … I grew up in a house so unusual that I was destined to exist as a social outcast.” None of this, Lopez explained, has to do with discrimination because same sex couples were unable to legally marry.
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