Curating Obergefell Commentary

  1. “A muddled, unconvincing opinion”
  2. Beyond the right to be wrong
  3. Et tu, Federalist?
  4. Why the GOP will quickly fold
  5. Hopeless losers redux

As I said, a lot of negative commentary on the Obergefell SSM decision is getting very repetitive. I can’t blame the authors. The decision is a big deal and I respect anyone willing to go on record against it – even if their opposition is derivative and duplicative. I’m highlighting some that weren’t.


Chief Justice John Roberts wrote the Court’s 6-3 opinion in King v. Burwell—and it shows—but it also reads like a consensus document that was circulated among its five co-signers, each of whom enjoyed fair input.

Kennedy’s Obergefell ruling is nothing like that. He succeeded in crafting a few poignant passages about the struggle for and righteousness of equality. And, of course, his ultimate holding was the correct one (sic). But the price of admission for the Court’s four liberals was to join a muddled, unconvincing opinion.

Outside of academic specialties, historic Supreme Court decisions aren’t generally taught as logical treatises, but as watershed moments, which is great news for Kennedy because his opinion in Obergefell is, logically speaking, kind of a disaster. On those rhetorical merits, Chief Justice John Roberts completely outmatched him. Which is too bad, because a decision as solemn and momentous as the Court made Friday ought to hold up well not just as a historically impressive step, but a convincing one as well.

(Brian Beutler in the New Republic) Except for saying the holding was correct, Beutler is right, and the baffler is that four other liberal justices had too little pride to withhold their vote until the turd was polished a bit brighter flushed and a semi-plausible rationale floated in its place. As Anthony Esolen put it, demolishing Kennedy’s bizarre ideas of human dignity, “Kennedy has gotten everything wrong, as ambitious sentimentalists are wont to do.”

There were several plausible theories floating around out there in favor of SSM, including the “sex discrimination” theory much beloved of some of the profs at Volokh Conspiracy. Any SCOTUS clerk assigned a first draft on that theory could have made something infinitely more workmanlike than Kennedy’s muddle – which I think someone has noted went off on a tangent unlike any of the briefs for SSM.

But Justice Kennedy forewent anything like legal analysis, turning the Supreme Court (a body with its reasons in the law and constitution) into the Supreme Heart (a body with ineffable reasons of which reason knows nothing).

It’s almost as if his real message was “I’m a Justice and I’ve got four other votes. Get used to it!” 2000 years ago, God could be pretty abrupt dealing with guys who thought they were gods. (A guy can dream, can’t he?)


If you have not yet realized that “Conservatives” and “Liberals” in the United States would better be called “Right Liberals” and “Left Liberals,” then allow some extra time to digest Patrick Deneen’s excellent Getting Beyond the “Right to Be Wrong.” 

Liberalism has always had a rich and thick content [i.e., it’s not neutral is it styles itself], and more aptly should be compared to…a religion. Indeed, liberalism is nothing but the reinstitution of a form of civil religion that mimicked many features of Christianity, including a recognition of separate spheres of church and state, an emphasis upon the dignity of the individual, and the presumption of a pre-political social state. But liberalism, in fact, advanced a re-definition of those features, the institution of a new form of belief that gradually replaced the religious forms that it mimicked. The purported decline of religious believers so prevalent in our time simply masks the fact that they have become full members of the Church of Liberalism, and demand fealty to the religion of the state. It is completely understandable to see why so many smart people have worked tirelessly  to secure religious liberty, but it is also tragic that they have often done so working blindly, unaware that their pleas do not work within a neutral set of political procedures, but from within the established Church of Liberalism.

(Emphasis added) This is not a throw-away block quote. Deneen specifically cites the Becket Fund for Religious Liberty, an effective, truly ecumenical defender of religious freedom, as one fighting with the tools of liberalism and thus, presumably, doomed to fail all too soon.

Becket had become my favorite religious liberty organization – effective, taking up the cases of truly marginal religions (not just Christians), and sober in their fundraising and announcements of success. In contrast, arguing for more than “the right to be wrong,” for “the right of Truth” as Deneen has it, seems doomed to instant failure in comparison to his (probably correct) prediction of eventual failure of the former. Is the tacit message “we’re doomed”? Nothing remains but to await the fall that inevitably follows overweening pride, and then leap into the rebuilding?

Georgetown published two other pieces on Obergefell and religious liberty, one in substantial agreement with Deneen‘s pessimism, one plausibly denying some of the most hyperbolic doomsaying:

1) Clergy who teach that marriage is only for different sex couples, or who teach that acts of same-sex intimacy are sinful, will be punished for hate speech …
2) Religious institutions or ministers will be forced to marry same-sex couples …
3) Religious institutions that condemn same-sex intimacy and same-sex marriage will lose their tax-exempt status …
4) Businesses that refuse to provide goods and services for same-sex wedding ceremonies will be sued and driven out of business ….

It’s worth reading, but I continue to think that:

  • Some Lone Ranger religiopreneur pastors who’ve been accommodating of darn near anyone who says they want a “church wedding” and who do not view marriage as a sacrament or ordinance, may well face something like number 2 in states that forbid discrimination based on sexual orientation;
  • Number 3 is plausible as to parachurch ministries because someone will push the Bob Jones precedent (as few if any have pushed it since 1983).

The denial of #4 is qualified: maybe half the states do not forbid discrimination based on sexual orientation, and businesses there are safe (though there’s now a huge push to add sexual orientation to anti-discrimination laws where that’s not been done already).


The Federalist has suddenly been publishing garbage like this. I don’t think it’s intended as advocacy. It may be thought self-refuting, even. But it’s not why I belong to the Federalist Society.

I may not renew membership.


Noted: Thomas B. Edsall, Op-Ed writer at the New York Times, seems to think “Woe to you who are at ease in Zion” is a clever way to admonish Republicans to catch up with the sexual revolution. Teaser on the Opinion Page to entice click-throughs: How will the Republican Party adjust as America moves to the left on social issues like same-sex marriage?

The story is a reminder to me that the GOP has taken as its lawfully wedded husband Corporate America, and that the husband will prove a very hard master if she so much as glances at her ex-boyfriend, Religious Right. Of course, Corporate America will continue to keep its Democrat concubines on the coasts.

There is no political home for any socially conservative Christian in America now. I just got to that realization a few years ahead of some others.


Do you think I was exaggerating when I said Justice Kennedy called single people hopeless losers? Michael Cobb thought the same: “A marriage equality based upon dignity makes pathetic singles of us all.”

Although I doubt that I would refashion the law as he would, I join him in noting this oddity:

Marriage equality activists could have pursued a different agenda — challenging the need for sexual scrutiny by the state, and the constellation of benefits that belong to marriage — but they didn’t. Instead of dreaming up new forms of governance, they asked to be ruled by the ones that already exist.

And so old questions remain: Why can’t I put a good friend on my health care plan? Why can’t my neighbor and I file our taxes together so we could save some money, as my parents do? If I failed to make a will, why is it unlikely a dear friend would inherit my estate?

The answers to all these questions are the same: It’s because I’m not having sex with those people.

“Why can’t I put a good friend on my health care plan?” is a question acutely worrying some friends of mine, a celibate pair of Christian women who are more than good friends, as they’ve merged their celibate lives into what strikes me (it’s very unlikely that they’d fully concur) as a sort of coenobitic monasticism. One has developed a pretty costly and scary affliction, and there’s a very real risk that she’ll lose the health coverage of her healthier partner if they don’t “marry” civilly, which they cannot do as a matter of conscience.

Thus does Kennedy’s idiom become self-fulfilling prophesy. Singles who can’t marry may become rather hopeless losers as domestic partner benefits are stripped insofar as they were a sop to employees who said they’d marry if they could (and brought on their coat-tails those would wouldn’t, for whatever reason). This is an additional answer to the rhetorical “what could possibly go wrong?” question on SSM.

* * * * *

“In learning as in traveling and, of course, in lovemaking, all the charm lies in not coming too quickly to the point, but in meandering around for a while.” (Eva Brann)

Some succinct standing advice on recurring themes.