On Justice Kennedy’s Tenuous Grasp of Human Dignity

Justice Kennedy

“At the heart of liberty,” wrote Justice Anthony Kennedy, poetaster supreme, versifying for the majority in Planned Parenthood v. Casey (1992), is “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That included the mysterious business of taking other lives, inconvenient lives brought into being by actions obviously designed to do just that. Most lately, in Obergefell v. Hodges, Kennedy has insisted that “the opportunity to marry is integral to human dignity,” and that “excluding gay and lesbian couples from marriage demeans the dignity of these couples.”

I wonder whether words mean anything anymore. Let us look at a plain fact. There are many people who will not have the opportunity to marry, who do not suffer any loss of dignity on that account. Some people do not have the intellectual capacity for marriage. Some people do not have the emotional capacity for it. Some people lack the physical capacity to consummate a marriage. That does not mean that they are less human than their more fortunate brethren. Nor does it mean that they are incapable of love, or not deserving of our reverence.

The man who says that he is not capable of joining with a woman in the ordinary way of nature is asserting a psychological incapacity, analogous to the incapacities I have mentioned above. Suppose we take him at his word. What then? We have not prevented him from marrying. He has simply refrained from availing himself of the opportunity. A man who cannot add and subtract would like to claim his household expenses as “business” losses. We do him no indignity when we say to him that he is in fact not in business.

Suppose the man whom women leave cold takes up residence with another man. Well, across the street live a middle-aged man and his autistic brother. They love one another, and will be together till death parts them. But theirs is not a marriage. It is a good thing, but we do them no injustice to say that they are not married, regardless of how deep their love is, or how pleasant they are to their neighbors, or how nicely they trim their flower garden.

What distinguishes the love of the brothers from the love of the homosexual man and his friend? Is it that the latter perform acts of sodomy, while the former do not? Is the membrum virile then the instrument that delivers that dignity which warms the cockles of Kennedy’s heart? Let us think about this for a moment. What does the sodomy add? Why should we value sodomy as such? Why should we value it so highly that for its sake we will overturn millennia of human experience, the social structure of our civilization, and the last tottering guardrails against judicial supremacy?

For suppose we find that the brothers are engaging in it. Does that addition make things better? More of a reason to celebrate? Does it add to their dignity? Do we not sense immediately that they are doing something very wrong, something that has corrupted their manhood and their relation to the rest of society, something unworthy of them as men and as brothers? Now suppose that the homosexual man and his friend are not sodomizing one another, not falling down in adoration of Priapus, but are living in self-restraint and chastity. Does that subtract from their supposed dignity? Would we not honor them all the more?

Dignity—the reverence that it rightly demands—springs from the reality of the human person, created in the image and likeness of God. Reality, not fantasy, not social convention. When Jefferson wrote that certain rights were “inalienable,” using the term in its most precise signification, he meant that even we cannot divest ourselves of them. We have those rights whether we like them or not. Therefore there is a givenness in man; he is at the least the sort of creature who possesses rights which he cannot sign away, or wish away. He may recognize them and honor them. He cannot annihilate them, because he has not created them to begin with.

Frank Sheed, in Society and Sanity, cites the philosopher Seneca, Homo sacra res homini: “Man should be an object of reverence for man.” But why, unless the being of man rightly calls forth that reverence? “It would be a highly mystical position,” says Sheed, “to maintain that man has these rights, no matter what he is—that if he is a chemical formula, he has a right to life and liberty; if he is an animal, different only in degree of development from the other animals, he has a right to life and liberty.” Poetaster Kennedy has now elevated that “highly mystical position” to the status of immutable constitutional law. We have an individual right to determine what in the sexual sphere is good and evil, because there are no such things, really. Therefore the right also is a mere fiction.

I do not believe that Kennedy himself is aware that that is what he has done. But there it is, in the nihilistic verses from Planned Parenthood v. Casey, verses writ with the blood of the innocents whose murder it justified. If the meaning of the universe depends upon my opinion, then the universe has no meaning, because I can change my mind at any moment, and—ping! the galaxies spell out a new word, and the very quarks shall speak. Yet is that not what freedom is all about, asks the freshman?

No, dear freshman, that is not what freedom is all about. Liberty is not a permission slip, but a power, a power that respects the reality of the creatures upon which it works, including the self. The sculptor, says Sheed, loves the marble he works with, not because it is what he fantasizes it to be, but because it is what it is, plain and simple, in all its resistance. If I love children, I love them for what they are, and do not corral them into inhumanly large herds, for the sake of efficiency in the twelve-year-long paralyzing of their brains, otherwise known as schooling. Freedom is emphatically not my assigning to them what “meaning” I wish, but rather my submitting to the goodness of what they are, as children. The principle that Kennedy puts forth is no principle at all, but the betrayal of all principle: for a principle presumes reality, and Kennedy has located our supposed freedom in unreality. Another way to put it is that, like the eternal teenager, he fails to see that liberty and law are twins.

He has also founded our social life upon the antisocial. He might as well have written, “Every man is an island unto himself,” a dreamer on an island, ignoring all the other dreamers on their other islands, and yet asserting that his dream on his island must be respected, just because he has dreamed it. What that ultimately means is that we are no society at all. For society, says Sheed, citing Augustine, is defined by the greatest love that unites us. The universal solvent of Planned Parenthood v. Casey is that no love shall unite us, because there is no reality in man’s life which we must all honor, whether we like it or not, and very often we will not like it—why, if I am the determiner of meaning, should I revere people who are cruel or lazy or stupid or dishonest or ugly or vulgar?

Kennedy has gotten everything wrong, as ambitious sentimentalists are wont to do. Man is worthy of our reverence as man. But his thoughts are worthy of our reverence only insofar as they are true. His deeds are worthy of our reverence only insofar as they are virtuous; and virtue is grounded in truth. I must revere the thief as man; I must not revere him as a thief, because he would be a better man, and more the man he was made to be, were he not a thief. I must revere the sodomite as man, not as sodomite, because he would be a better man if he could integrate his desires and his deeds with the reality of his body. The truth of the sexes, male and female, is stamped upon their bodies, so clearly that even children understand it. To treat a man with reverence is to honor that manhood, what is given to him in the structure of his mind and body; it is not something he has chosen. To treat a man as if he were a woman is to do violence to that manhood and that body. Need we spell this out?

Here finally I hear a soft and simpering voice, the last gasp of the lie. “But what harm will it do to pretend that the two men are married, even if, strictly speaking, they aren’t? Can’t we simply shrug and go about our business?” No, we can’t. Justice Kennedy is a kindly sentimentalist, but kindliness divorced from truth is no real virtue; that sort of thing is often the result of having a good digestive system, and a comfortable bed to sleep in. Other sentimentalists are not so kindly. They have names like Kinsey, Sanger, Stalin, Kevorkian, and Mao. Ignoring reality, ignoring the law of our being, ignoring the peculiar goodness of the sexes, is always foolish, even when it is not downright evil. You may pretend that such truths do not exist, just as you may pretend that you can suspend the law of gravity as you step off the edge of a cliff. Nature, and Nature’s God, are not required to oblige your fantasy.

And Christians of all people should remember the one whom Jesus called the father of lies.

Anthony Esolen


Professor Esolen teaches Renaissance English Literature and the Development of Western Civilization at Providence College. He is a regular contributor to Crisis Magazine and the author of many books, including The Politically Incorrect Guide to Western Civilization (Regnery Press, 2008); Ten Ways to Destroy the Imagination of Your Child (ISI Books, 2010) and Reflections on the Christian Life (Sophia Institute Press, 2013). His most recent books are Reclaiming Catholic Social Teaching (Sophia Institute Press, 2014); Defending Marriage (Tan Books, 2014); and Life Under Compulsion (ISI Books, 2015).