In Obergefell v. Hodges, America was once again confronted with the pseudo-philosophical and theological ruminations of Justice Anthony Kennedy. Though one’s initial, reasonable tendency would be to assess any court decision on legal grounds, Justice Kennedy’s opinion is founded on a constitutional jurisprudence that went awry long ago. Instead, perhaps the more appropriate hermeneutic for reading Justice Kennedy’s opinion is the theological lens—a lens that prominently reveals and displays the arrogant and fanciful creation of a liberty out of nothing.
In his refreshing dissent, Justice Alito harbors the claim against Justice Kennedy that his majority opinion has imported “a distinctively postmodern meaning” into the Constitution. Though postmodernism typically stirs up associations with “godlessness,” we should shy away from this understanding. For as man exists not in a vacuum, man exists not without the Lord God. The Lord God will always be for man, including those of the postmodern ilk. The critical question becomes: Who is the Lord God for man?
After surveying the regression of man’s philosophical and theological thought through Humanism, the Renaissance, and the Enlightenment, Msgr. Luigi Giusanni poignantly concludes the following in his essay Religious Awareness in Modern Man: “Thus the Dominus who had the right to determine life and the cosmos is no longer God, but man himself….” As man faces the seeming “possibility of a limitless and unchallenged dominion,” Giussani continues, man is promised “a world built according to his plans” where he becomes “the master of his own destiny.” For Giussani, no philosophy will exist without an underlying cosmology and theology. As such, the same holds true for Justice Kennedy, giving way for a new Dominus.
For Justice Kennedy, a theological drama of salvation by the state through the institution of the judiciary and the creation ex nihilo of novel liberties previously unimagined (see Baker v. Nelson) has replaced a seemingly antiquated theological drama whereby the Creator endows his creatures with an inalienable nature, providing them a telos as their guide. Through his participation in this new theological drama, Justice Kennedy trades in the practice of disciplined jurisprudence based on justified legal doctrines for an implicit—or, perhaps explicit—theology masquerading in legalese. This method of jurisprudence not only raises a “threat to American democracy,” as Justice Scalia stated, but threatens the very soul of man. As Aristotle tersely observed, “statecraft is soulcraft.”
Contrary to the limited judiciary envisioned by Alexander Hamilton in Federalist No. 78, Justice Kennedy exercises a judicial power that has both a creative force and a will. The effect of this creative force and will leaves man to his own devices—or rather, vices. One where man basks in a notion of liberty that entails “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” as Justice Kennedy and Co. pronounced in Casey v. Planned Parenthood.
And if Justice Kennedy has traded his judicial robes for the soutane, it is worth remembering the good theologian ought to have his head in the heavens and feet firmly planted on the ground. Unfortunately, it seems as though Justice Kennedy has lost his footing and permitted his head to float away with the ephemeral dogmas of the day.
To appropriately honor his “creative” activism, it seems fitting to offer “due praise and glory” to the One (Swing Vote), Creator (of Constitutional Rights & Liberties), Justice Kennedy. Indeed, only an inspired account would actually explain the creation ex nihilo of the judicially promulgated right to same-sex “marriage.” Therefore, in lieu of a straining constitutional analysis, I posit the following Genesis account as the more straightforward understanding for Obergefell, in light of the logos of Justice Kennedy:
1In the beginning when the Founders created the Constitution of the United States of America, 2 the Constitution was a formless void and darkness covered the face of the parchment, while a stroke from the pen of Justice Kennedy swept over the face of the document. 3 Then Justice Kennedy said, “Let there be liberty”; and there was liberty. 4 And Justice Kennedy saw that the liberty was good; and Justice Kennedy separated the liberty from the animus of the State. 5 Justice Kennedy called the liberty Day, and the animus he called Night.
6 And Justice Kennedy said, “Let there be a dome in the midst of the political process, and let it separate the legislature from the judiciary.” 7 So Justice Kennedy made the dome and separated the judiciary that was under the dome from the legislature that was above the dome. And it was so. 8 Justice Kennedy called the dome separation of powers. And there was evening and there was morning, the second day.
9 And Justice Kennedy said, “Let the political power under the sky be gathered together into one place, and let the judiciary appear.” And it was so. 10 Justice Kennedy called the judiciary the Supreme Court, and the powers that were gathered together he called plenary. And Justice Kennedy saw that it was good. 11 Then Justice Kennedy said, “Let the Supreme Court put forth dignity: autonomy yielding seed, and intimate choices of every kind on earth that bear fruit with the seed in it.” And it was so. 12 The Supreme Court brought forth dignity: autonomy yielding seed of every kind, and intimate choices of every kind bearing fruit with the seed in it. And Justice Kennedy saw that it was good. 13 And there was evening and there was morning, the third day.
14 And Justice Kennedy said, “Let there be penumbras in the dome of the sky to separate the emanation of rights from the night; and let them be for privacy and for protection and for identity and belief, 15 and let them be light in the dome of the sky to give rights upon the autonomous of the State.” And it was so. 16 Justice Kennedy made the two great rights—the greater right to rule the State and the lesser right to rule the people—and the emanations. 17 Justice Kennedy set them in the dome of the sky to give rights upon the autonomous of the State, 18 to rule over the liberty and over the animus, and to separate the liberty from the animus. And Justice Kennedy saw that it was good. 19 And there was evening and there was morning, the fourth day.
20 And Justice Kennedy said, “Let the judiciary bring forth swarms of living clauses, and let words fly above the earth across the dome of the sky.” 21 So Justice Kennedy created the great interpretations of every living clause that moves, of every kind, with which the judiciary swarm, and every winged word of every kind. And Justice Kennedy saw that it was good. 22 Justice Kennedy blessed them, saying, “Be fruitful and multiply and fill the State in the Constitution, and let rights multiply on the earth.” 23 And there was evening and there was morning, the fifth day.
24 And Justice Kennedy said, “Let the earth bring forth unenumerated rights of every kind: synergies and changing things and wild aphorisms of the earth of every kind.” And it was so. 25 Justice Kennedy made the wild aphorisms of the earth of every kind, and the synergies of every kind, and everything that changes upon the text of every kind. And Justice Kennedy saw that it was good.
26 Then Justice Kennedy said, “Let us make liberties in our image, according to our likeness; and let them have dominion over the believers of the temple, and over the clerks of the court, and over the bakers, and over all the wild unprogressives of the earth, and over every hateful thing that hates upon the earth.”
27 So Justice Kennedy created liberties in his image, in the image of Justice Kennedy he created them; substance and equality he created them.
28 Justice Kennedy blessed them, and Justice Kennedy said to them, “Be fruitful and multiply, and fill the earth and subdue it; and have dominion over the accommodations of the public and over the rights of the employer and over every believing thing that believes upon the earth.” 29 Justice Kennedy said, “See, I have given you every autonomy yielding seed that is upon the face of all the earth, and every intimate choice with seed in its fruit; you shall have them for identity. 30 And to every believer of the temple, and to every clerk of the court, and to everything that bakes on the earth, everything that has the breath of animus, I have given every coercion for duty.” And it was so. 31 Justice Kennedy saw everything that he had made, and indeed, it was very good. And there was evening and there was morning, the sixth day.
2Thus the right to same-sex marriage was finished, and all its creation. 2 And on the seventh day Justice Kennedy finished the interpretation that he had done, and he rested on the seventh day from all the interpretation that he had done. 3 So Justice Kennedy blessed the seventh day and hallowed it, because on it Justice Kennedy rested from all the interpretation that he had done in the Constitution.
4 These are the emanations from the penummbras of the fundamental rights and liberties when they were created ex nihilo.
(Photo credit: Courtesy of Shutterstock)