Kennedy on Changing Marriage in One <em>Obergefell</em> Swoop

Kennedy on Changing Marriage in One Obergefell Swoop

December 04, 2018

When Justice Anthony Kennedy became the deciding vote on same-sex marriage in America, he surprised a lot of people. Including, apparently, himself. Three years after the Supreme Court ruling that rocked the world, the retired justice sat down to talk about the Obergefell case -- and how little the Constitution had to do with it.

When five men and women overturn thousands of years of human history -- and tens of millions of American votes -- most people want to know why. In the U.S., the 2015 ruling still stings, especially in a country still very much divided over the question. The liberal media, of course, would like everyone to think the issue has been decided. But as recently as last month, the numbers told a different story. Even in a survey with more Democratic-leaning voters, natural marriage was still polling ahead of the Supreme Court's version -- 48 percent to 45.

For years, LGBT activists had insisted America was outside the mainstream. Now, after votes in the Caribbean, Bermuda, and Taiwan, it's obvious that the only ones outside the mainstream were justices like Kennedy. So why, Bloomberg TV asked, did the Ronald Reagan appointee side with an agenda that runs so contrary to the Constitution, nature, and human tradition?

"[I surprised] myself," he said to David Rubenstein, especially, he pointed out, because of his religious beliefs." But "the nature of the injustice," Kennedy insisted, "is you can't see it in your own time." "As I thought about this, and I thought about it more and more, it seemed wrong -- unconstitutional -- to say that over 100,000 adopted children could not have their parents married."

As social science will tell you, Justice Kennedy has it all backwards. "The Court's unprecedented redefinition of legal marriage harms the very children it was designed to protect," Nancy Pearcey fired back in an American Thinker column, "and indeed, all children." Although he said he tried to take everything into consideration, he obviously neglected the one thing that judges in his position are called to consult: the Constitution.

"Your duty in every case is to ask why you are doing what you are about to do," Kennedy said. "If you make up your mind in advance, you are not following that oath." In other words, FRC's Peter Sprigg says, it was a policy decision. "He decided he thought it was a good idea, so he decided to impose it on the country. The problem, of course, is that judges are supposed to interpret what the Constitution actually says, not impose their own preferences."

Fortunately, the court can't change an institution God created. Unfortunately, more judges seem intent on trying. That's what makes the Republican Senate's work so important. Thanks to Majority Leader Mitch McConnell (R-Ky.), Chuck Grassley (R-Iowa), and President Trump, conservatives are finally balancing out -- not just the Supreme Court -- but benches across America with true and strict constructionists. These are men and women who, when they ask themselves "why they're doing what they're about to do," the answer is simple: their job is to interpret the law, not write it.

Meanwhile, if Justice Kennedy and his four activist colleagues thought they'd resolved the issue, they're mistaken. Kennedy may be clueless about the destructive nature of Obergefell, Pearcey writes. But Americans aren't. Like the pro-life movement, people have started to see the real-life consequences of the court's decision. And it doesn't feel like "progress" to them.

Tony Perkins' Washington Update is written with the aid of FRC senior writers.

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