Archives: Kennedy Replaces the “Laws of Nature” with His Own

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11/11/1987 President Reagan meeting with Judge Anthony Kennedy in the Oval Office

By Paul Kengor, Crisis Magazine, July 3, 2015

Same-sex “marriage” advocates will heartily celebrate July 4 this year, thrilled with the possibilities in the New America they’re creating in their own image. They will be especially grateful to Anthony Kennedy and the four liberal justices who gave them gay “marriage” by assuming unto themselves what Thomas Jefferson two-and-a-half centuries ago called “the Laws of Nature and of Nature’s God.” That sublime understanding in that Declaration has been superseded by a subversive understanding declared by the likes of Justice Kennedy.

Kennedy’s swing vote making gay “marriage” a constitutional right recognized in all 50 states is one of the most extraordinary examples of the power of one man, let alone one jurist, that we have ever seen in American legal or cultural history. It isn’t every day that a man or a Supreme Court renders unto itself the right to redefine something—i.e., marriage—that all men and courts heretofore had seen as the unique province of nature and God. How did Kennedy do it? What was it in his background, his upbringing, that brought him to this juncture?

Various explanations, of course, are being bandied about. I’ll share two, one of them unique to my own knowledge of Kennedy, and then wrap up with a third that, I believe, easily settles the mystery and foreshadowed precisely Kennedy’s willingness to redefine the multi-millennial, natural, traditional, biblical, Western, Judeo-Christian, Catholic standard of marriage between a man and a woman.

First there’s what I would call the New York Times-Huffington Post theory. This surfaced prominently in a story several weeks agoon Kennedy’s relationship with Gordon Schaber, a gay man and dean at the McGeorge School of Law in Sacramento. Schaber was a friend and mentor to Kennedy. This began for Kennedy a long life of respect for gay people. By liberal logic, this empathy for gays meant that Kennedy would, naturally, ipso facto, redefine marriage when he had the chance. In the modern liberal mind, there’s no nuance in this area: either you redefine marriage or you hate gays, period. Kennedy does not hate gays, and thus he would redefine marriage. To the liberal, not discriminating against gays means adopting their entire agenda, even if their concept of marriage violates one’s sacred religious beliefs.

A second explanation is one that I can uniquely offer. I heard it years ago from a close friend, Judge Bill Clark. I was Clark’s biographer.

Clark was the closest adviser to Ronald Reagan. Reagan personally offered Clark the Supreme Court seat that went to Sandra Day O’Connor in 1981. Clark turned it down, not wanting to spend the rest of his life in Washington.

When Reagan was governor of California, he had appointed Clark (who had been his chief of staff in Sacramento) all the way up the California court system, 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 regular lunches together.

In 1987, Reagan appointed Kennedy to the high court, after his two previous attempted appointees (including Robert Bork) didn’t make it. Reagan and his staff believed that Kennedy would judge as a strict constructionist. They were not unjustified in that expectation, but within about five years, they were frequently disappointed. Kennedy occasionally made some good decisions, especially respecting states’ rights, but also leveled some really bad ones.

As Clark’s biographer, I was privy to his deep concerns over Kennedy’s decisions at the U.S. Supreme Court. Clark told me often that Kennedy was a man “unusually influenced” by his surroundings. He always feared that Kennedy, though at heart a moderate-conservative, would blow with the wind of prevailing opinion in Washington and its liberal-progressive circles. In point of fact, Clark often reminded me of Kennedy’s woeful decision in the 1992 Supreme Court case Planned Parenthood v. Casey. And that decision brings me to my third explanation.

The “Casey” was Pennsylvania’s governor, the late Bob Casey Sr., a pro-life Democrat (there aren’t many of those left in Washington). Casey lost that decision in a 6-3 vote that affirmed a national constitutional right to legal abortion in all 50 states. And 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.”

Chew that one over. There, my friends, lies your answer to Kennedy’s willingness to redefine marriage.

If Anthony Kennedy interprets liberty in America to mean that every American possesses a right to define his or her own singular concept of existence, meaning, the universe, and life itself, then why can’t Americans come up with their definitions of marriage? Really, redefining marriage is small potatoes after all that.

The Founding Fathers, of course, rolled over in their graves at that Kennedy proclamation. It is, obviously, not the Founders’ conception of liberty. Nor, for that matter, is it a Catholic/Christian understanding of liberty.

Genuine freedom—certainly the Christian conception—is not license. For the Christian, freedom requires faith; it should never be decoupled from faith. Freedom without faith is the Las Vegas Strip, not the City of God.

In the New Testament, Galatians 5:13-14 states: “For you were called for freedom, brothers. But do not use your freedom as opportunities for the flesh; rather, serve one another through love. For the whole law is fulfilled in one statement, namely, ‘You shall love your neighbor as yourself.’”

As noted by Pope John Paul II, without the rock and rudder of faith, freedom can become confused, perverse, and can even lead to the destruction of freedom for others. Pope Benedict XVI said that the West suffers from a “confused ideology of freedom,” one that has unleashed a modern “dictatorship of relativism.”

Russell Kirk, a Roman Catholic and one of America’s leading philosophical spokesmen for conservatism, spoke of “ordered liberty.” Kirk talked of the need for “inner order” before citizens could successfully govern through “outer order.” Ordering ourselves internally was critical to the nation’s external order. Similarly, Thomas Merton, in his brilliant 1962 classic, Life and Holiness, called this “trained liberty.”

Ronald Reagan believed this wholeheartedly. Reagan feared what happens to free, democratic societies when they scrap religious faith. One of Reagan’s best speeches was a forgotten October 1988 address at Georgetown University. “At its full flowering, freedom is the first principle of society; this society, Western society,” said Reagan. “And yet freedom cannot exist alone.” Pointing to “learning, faith, and freedom,” Reagan told the students: “Each reinforces the others, each makes the others possible. For what are they without each other?” Quoting Tocqueville, Reagan said: “Despotism may govern without faith, but liberty cannot. Religion is more needed in democratic societies than in any other.’”

It reminds me of a similar assessment by Fulton Sheen. “A religion can live without democracy, but democracy cannot live without religion.”

That’s a proper understanding of liberty. Our Founders understood it. The nation’s first president, George Washington, stressed the need for citizens to self-govern themselves before they could self-govern their nation. John Adams stated emphatically: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

It is indeed. Our Founders knew that freedom needed faith. Freedom, properly practiced, isn’t about the freedom of Supreme Court justices coming up with their own definitions of things.

Unfortunately, such is the modern conception of Anthony Kennedy and four justices who joined him in a historic decision rendered on June 26, 2015. Marriage has thus been legally redefined in America. But then again, as Kennedy told us in 1992, being an American means defining your own meanings. We should not have been surprised.

Same-sex “marriage” advocates will enjoy their July 4. They are getting the America they’ve long waited. Tragically, however, that means undermining the very American understanding of liberty that their once-great nation was founded upon.