Anthony Kennedy, the Man Who Could Redefine Marriage

Though Catholic, the Supreme Court's swing vote advances an individualistic view of liberty that expresses the "dictatorship of relativism."

By Paul Kengor Published on May 7, 2015

A recent profile of Justice Anthony Kennedy begins with this: “The Irish Catholic boy who came of age in Sacramento after World War II is an unlikely candidate to be the author of the Supreme Court’s major gay rights rulings. But those who have known Justice Anthony Kennedy for decades and scholars who have studied his work say he has long stressed the importance of valuing people as individuals.”

Well, like Kennedy, I’m also Catholic, and I likewise value all people as individuals, including gay people — as does my Roman Catholic Church and Pope Francis. But why must we, therefore, reject our faith’s millennia-old, traditional-natural-biblical teaching on marriage as between one man and one woman? That’s the question, and not just for Catholics but countless non-Catholic Christians.

For Catholics faithful to their Church’s teachings, the Justice Kennedy scenario is increasingly maddening, if not dismaying. They are looking at the prospect of marriage being redefined in America based on the swing vote of this lifelong Catholic. They’re not optimistic, especially given Kennedy’s shockingly relativistic views expressed in previous major court decisions.

The Most Notorious Case

The most notorious was Planned Parenthood v. Casey (1992), which enshrined Roe v. Wade as the law of the land. There, Kennedy led the majority with this breathtaking proclamation: “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.”

That line was crafted by a Supreme Court majority that included three Reagan-Bush (first Bush) appointees, all of them Christians: Anthony Kennedy (Catholic), Sandra Day O’Connor (Episcopalian), and David Souter (Episcopalian). The authorship is usually attributed to Kennedy. Joining his slim 5-4 majority were John Paul Stevens and Harry Blackmun, who authored the original Roe decision, which he slowly crafted inside the United Methodist Church building next to the Supreme Court.

Of course, in truth, this is plainly not the Christian/Catholic understanding of liberty. What Kennedy and allies expressed is a totally non-Christian (arguably anti-Christian) and completely individualistic understanding. If you’re looking for a slogan for what both Pope Francis and his predecessor, Pope Benedict XVI, called the dictatorship of relativism, that statement is it. Kennedy’s formulation of liberty is a radical secular progressive’s understanding; a progressive would argue that definitions of liberty and everything else are always changing and evolving, and always up to the person or the culture of the moment.

If Anthony Kennedy persists in this damaging misunderstanding of liberty, next using it to justify legalized gay “marriage” on top of legalized abortion, then he could serve as a poster boy for Christian churches’ colossal failure in properly teaching the laity. We shall see.

On the plus side for faithful Catholics, the four likely votes against gay marriage are all Catholic: Clarence Thomas, Samuel Alito, Antonin Scalia and (perhaps) John Roberts. Tellingly, the four most probable “yes” votes for redefining marriage will come from Sonia Sotomayor — a secular, non-practicing Catholic — and Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan — all of whom, to my knowledge, are non-practicing, non-orthodox Jews.

Who says religion doesn’t matter?

The presence or lack thereof, or level of devoutness, is at the heart of where America — from everyday citizens to justices on the high court — stand on this unprecedented cultural novelty called “gay marriage.”

Bill Clark’s Example

Finally, an added insight into Justice Kennedy’s role at this crucial historical stage in the life of America: As noted, Kennedy was a Reagan appointee. Also nearly a Reagan appointee was Bill Clark, to whom Reagan quietly offered the Supreme Court vacancy that instead went to Sandra Day O’Connor in July 1981. Clark and Reagan were extremely close.

Reagan as governor appointed Clark (his chief of staff in Sacramento) all the way through the California court system in the 1970s, including to the state’s supreme court. There in Sacramento, Clark had a close relationship with a fellow Irish Catholic, Anthony Kennedy, who served there on the federal bench. The two had a regular one-on-one lunch together.

As Clark’s biographer, I was privy to his deep concerns over Kennedy’s decisions at the U.S. Supreme Court. He told me often that Kennedy was a man “unusually influenced” by his immediate surroundings. Clark was very humble, but he believed that if he would have accepted Reagan’s offer for the seat that went to O’Connor, he could have kept Kennedy on a path of judicial restraint and constitutionalism that (among other things) would have had Kennedy voting for the side of Pennsylvania Governor Bob Casey Sr. (a pro-life Democrat) in Planned Parenthood v. Casey. Clark himself likely would have authored that majority decision, which could have been a 6-3 decision.

Alas, it was not meant to be. Clark instead became Reagan’s national security adviser, where, as head of the National Security Council, he and his president laid out a remarkably bold and successful plan to defeat Soviet communism and win the Cold War. No small achievement.

For Clark, it was a great regret that he wasn’t there on the court to reverse Roe v. Wade in 1992, but, ultimately, he understood that he could only do so much. Clark’s calling — what he and Reagan called “The DP,” or “The Divine Plan” — was to win a Cold War, not to take on this element of the Culture War. The Culture War, unfortunately, was left to the likes of Anthony Kennedy.

Bill Clark died in August 2013. His old friend Anthony Kennedy is very much alive and active. For Clark, his solid Catholic education, both Augustinian and Franciscan, was central to all of his thinking. He would never have been so bold as to redefine liberty as the “right” to define one’s own meanings of human life and existence, and Clark certainly would not have rendered unto himself the right to redefine marriage. Will Justice Kennedy do so? Hey, if he has already averred that one has a right to define one’s own meanings of human life and existence, then why can’t one devise one’s own meanings of marriage?

All of America watches in anxious anticipation to see how this Irish Catholic boy from Sacramento decides. In many ways, tragically, the future of marriage resides in the hands of this one man. It should not be.

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