With the confirmation of Neil Gorsuch to the U.S. Supreme Court, many social conservatives breathed a sigh of relief. From what we know of his record, Justice Gorsuch does seem to be a worthy successor to Justice Antonin Scalia. Even if Gorsuch is somewhat less distinguished as a legal mind than Scalia, he is clearly politically astute. He ably navigated the minefield that has faced all Republican appointees to the Supreme Court since the nomination of Judge Robert Bork; unlike previous nominees who made the disingenuous argument that they had never considered what they would do if presented with a case that provided an opportunity to reconsider Roe v. Wade (1973), Gorsuch argued—and rightly so—that he could not consider how he would vote on any possible future case without knowing the details of the case, and of course he would not know those until the case was argued before the Court. Gorsuch had obviously studied the hearings of previous nominees and learned appropriate lessons from them; future Republican nominees would do well to learn this particular lesson from Gorsuch.
Still, other social conservatives continue to hold their breath, and not without reason. Justice Gorsuch’s discussion in his nomination hearings of the weight he places on judicial precedent offered no clear signal as to whether he would regard Roe as a precedent to be upheld or as a case to be removed from the chain of precedent because it was wrongly decided. And his seeming acceptance of homosexual “marriage” in his personal and religious life would, at the very least, be at odds with any future vote to overturn the Court’s decision in Obergefell v. Hodges (2015). Add to that the odd signals sent by the man who appointed Gorsuch to the Supreme Court—after his election, Donald Trump declared in an interview with 60 Minutes that the two-year-old Obergefell is “settled” law, while the 44-year-old Roe is not—and it’s clear that this opera won’t be over until Justice Gorsuch sings.
The preoccupation with reading the tea leaves regarding Gorsuch’s potential future votes, however, has kept the eyes of both those who trust the new justice to do the right thing and those who are more skeptical that he will do so off of the elephant in the courtroom. With the Obergefell decision, the dynamic of the Court changed dramatically for the foreseeable future. Indeed, future historians (assuming there still are historians in the future) might well say that, with Obergefell, the United States passed into a new constitution, in the way that both the British and the French would understand that term. Judicial supremacy is no longer a threat to the separation of powers enshrined in the Constitution of the United States; it is the foundation of a new form of government—at least as regards anything touching upon what has come to be known as “gender,” including all matters sexual and the social institutions that flow from them.
The seeds of this new constitution were planted 25 years ago by Justice Anthony Kennedy, the author of the Obergefell decision, in his much-derided “Mystery Passage” in Planned Parenthood v. Casey (1992):
Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Our cases recognize “the right of the individual, married or single, to be free from unwarranted intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” Our precedents “have respected the private realm of family life which the state cannot enter.” These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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. Belief about these matters could not define the attributes of personhood were they formed under the compulsion of the state.
When people refer to the Mystery Passage, they mean the italicized line in the quotation above. It’s easy to reduce that line to an object of ridicule; it reads like the précis for a term paper in a freshman philosophy class. But read in the context of the entire paragraph, the Mystery Passage is no laughing matter. The “right to define” is also the right to redefine; and right there, in 1992, long before any of these United States had attempted to declare that the sky is green and the grass is blue and a man could be wife to another man, Justice Kennedy placed the right to (re)define reality regarding “marriage, procreation, contraception, family relationships, child rearing, and education” at the “heart of liberty,” which the 14th Amendment declares no “State can deprive any person of … without due process of law.”
Because the Mystery Passage was written in the service of the status quo—upholding Roe v. Wade—it was easy to dismiss at the time as sheer pettifoggery; and, conversely, it was easy to deride as Chicken Littles those who, like Justice Scalia, saw where the Mystery Passage would one day lead. Yet Justice Scalia lived long enough to be proved correct.
At no point in his Obergefell decision does Justice Kennedy cite either the Mystery Passage specifically or Casey in general (only Justice Thomas makes reference to Casey, in his dissent, in which he was joined by Justice Scalia); but Obergefell would not exist were it not for the groundwork that Kennedy laid in Casey. The argument that Kennedy advances in Obergefell is the same as that in Casey. The “liberty” protected by the 14th Amendment guarantees every American the right to redefine marriage and all other matters relating to sexual identity as he/she/zhe desires at any given moment. Those who criticized the Mystery Passage 25 years ago argued that this would lead to an untenable situation—the fostering of a relativism or nihilism regarding the most essential aspects of human life that would undermine the very foundation of human society.
Were this to play out solely in a social sense—that is, were everyone simply to hold his or her or zir own definition of, say, marriage and family—that would be true. But Obergefell revealed how the Mystery Passage would truly play out—not in empowering the individual to construct his own reality in his own image, but by empowering judges to reconstruct reality in theirs.
Casey‘s judicial creation of an individual right to redefine marriage and all other matters relating to sexual identity means that any accepted definition can stand only so long as it is left unchallenged legally. Once it is challenged, the accepted definition becomes a matter for judicial review. But at that point, it no longer matters what you or I or Jim Obergefell thinks marriage means; all that matters is what the judge who hears the case thinks it means. And since such cases will ultimately make their way to the U.S. Supreme Court, all that really matters is what those nine justices think it means.
Just as a demagogue claims to speak for “the people” in order to advance his own interests and agenda, Justice Kennedy’s ruling in Obergefell had less to do with the rightness of the plaintiff’s claims than with Justice Kennedy’s conception of what lies at “the heart of liberty.” Thus, in Obergefell, we see the future of jurisprudence, at least as regards all matters even remotely touching on “gender.” The only limits on what the Mystery Passage can be used to justify—either by citing it directly or simply assuming it as foundational, as in Obergefell—are a federal judge’s imagination and his sense of propriety.
In other words, in Obergefell, Anthony Kennedy completed the transformation of constitutional law in this country that he began in Casey, at least with regard to matters sexual and the social institutions that flow from them. The elephant in the courtroom that most people have yet to notice is that this transformation, at heart, frees judges from the requirement to hew to established law and precedent, let alone broader tradition, since these are based on accepted definitions. Whether any particular judge will choose to follow established law and precedent in any particular case in which the plaintiff desires the redefinition of anything “relating to marriage, procreation, contraception, family relationships, child rearing, and education” is now entirely up to the judge hearing the case.
In the past, a particular judge could choose to disregard established law and precedent and attempt to redefine fundamental reality. But if he did so, there were checks on his will—chiefly, the possibility of being overruled by a higher court. But the elevation of the Mystery Passage to the overriding principle of justice in Obergefell, for all intents and purposes, removes those external checks, making the judge’s will supreme.
That some, or even most, judges might continue to follow established law and precedent for the foreseeable future (perhaps out of the same type of cultural inertia that prevented Barack Obama and Hillary Clinton from embracing homosexual “marriage” earlier than they did) does not change that reality. They do so now not because external structure of American jurisprudence requires them to do so but because they choose to do so.
As I wrote on the day that the decision was handed down, Obergefell proved that the Constitution is a living document, and its name is Anthony Kennedy. Or its name may be Neil Gorsuch. It hardly matters which justice becomes the deciding vote in the future: Unless and until a future Supreme Court drives a stake through the heart of both the Mystery Passage and Obergefell, we live in a judicial dictatorship. The best we can hope for now is that our dictators are benevolent.
Editor’s note: In the photo above, new Supreme Court justice Neil Gorsuch, left, stands with his mentor, Supreme Court justice Anthony Kennedy in the Rose Garden of the White House, Monday, April 10, 2017, during Gorsuch’s public swearing ceremony. (Photo credit: AP Photo/Evan Vucci)