With Its Soaring Rhetoric, the Supreme Court Elevates Sexual Liberty over All

My resident Constitutional expert, David French, on the gay marriage ruling:

The most striking aspect of Justice Kennedy’s majority opinion in Obergefell v. Hodges, which created a constitutional right to same-sex marriage, was its deep emotion. This was no mere legal opinion. Indeed, the law and Constitution had little to do with it. (To Justice Kennedy, the most persuasive legal precedents were his own prior opinions protecting gay rights.) This was a statement of belief, written with the passion of a preacher, meant to inspire.

Consider the already much-quoted closing:

As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.

Or this: “Marriage responds to the universal fear that a lonely person might call out only to find no one there.”

This isn’t constitutional law, it’s theology — a secular theology of self-actualization — crafted in such a way that its adherents will no doubt ask, “What decent person can disagree?” This is about love, and the law can’t fight love. Justice Kennedy’s opinion was nine parts romantic poetry and one part legal analysis (if that).

And that’s what makes it so dangerous for religious liberty and free speech. Practitioners of constitutional law know that there is no such thing as an “absolute” right to free speech or religious freedom in any context — virtually all cases involve balancing the asserted right against the asserted state interest, with “compelling” state interests typically trumping even the strongest assertions of First Amendment rights. And what is more compelling than this ode to love?

The challenge for orthodox religious believers is now abundantly clear: For years, they’ve been standing against “history,” “equality,” and — yes — love itself. Now, all of that rhetoric has been constitutionalized, embedded in the secular scripture of our land.

Read it all here on National Review.

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