Writing in The Catholic Thing, Prof. Hadley Arkes, in “Waiting for the Decision on Marriage,” discusses both how the impending ruling will hinge on the work of Justice Kennedy, and how, in the wake of the expected outcome, we can respond to the edict of the Court. Some excerpts:
“As Justice Kennedy has himself said, that arrangement [of marriage as the union of one man and one woman] has been with us for ‘millennia.’ And yet it is Kennedy’s call, because there are four justices on the Supreme Court immanently ready to impose, as a requirement of the Constitution, virtually anything that the cultural Left is willing to advance in the name of ‘progress’ and liberation. By simply adding his vote, Kennedy can bring about an outcome in which a bare majority of five persons can unsettle our laws and wreck an institution that has been bound up with ‘the laws’ ever since there have been laws.”
“This was precisely the kind of situation that Lincoln denounced in his First Inaugural Address in regard to the decision of the Supreme Court in the Dred Scott case: two private litigants, perhaps even in a state of collusion, could join with a slim a majority of the Court, and make the public policy binding on the whole country. With that stroke, they would establish the jural ground for making slavery national in scope, and put the burden on the rest of the country to summon an extraordinary majority to pass a constitutional amendment to overcome that decision.”
“Of course, what could be said here about Dred Scott could be said with even deeper sorrow, and a deeper ‘body count,’ about Roe v. Wade. And the word has been that Justice Kennedy would prefer to accomplish his ends, in the cases on marriage, without creating another Roe v. Wade. With the decisions already taken, Kennedy and his liberal colleagues have put in motion many judges in the lower federal courts to carry through the work and install same-sex marriage even without the need for the High Court to do more.”
“And so, if Justice Kennedy plays to form, and does his gratuitous worst, it matters profoundly as to whether a political figure with standing gets up and plays the pivotal role that Lincoln played in the aftermath of Dred Scott. When the decision in that case was announced, Lincoln began the devastating critique, which was built into a nationwide movement to counter and overturn that decision. He taught us that the function of the statesman was to get clear in the first place on those issues that are truly central – and then show us how ordinary people can talk about that issue in the political arena.”
Read the whole piece here.