Anthony Kennedy

Post-Windsor Chaos: Grinding Down the Rule of Law


Deafening cheers electrified the victory celebration.

On November 4, 2008, the people of California passed Proposition 8, defining marriage as between one man and one woman. I was there. I was there when supporters of traditional marriage, poring for hours over live polling data finally erupted with shouts of triumph. At the victory party in Sacramento, amid throngs of cheering volunteers, I remember realizing that not all was lost in this world.

Don’t get me wrong, conservatives took a beating that night. Barack Obama was elected President. Both houses of Congress swung decidedly to the left. But, after an all-out political and legal battle years in the making, the people had spoken, and they spoke for true marriage.

I was fifteen years old in November, 2008. Raised in Oregon, I took a road trip to California to be involved in the campaign to preserve marriage, as well as a congressional race. It was my first campaign, but far from my last. Volunteering to help pass Proposition 8 was my first foray into politics, and it was the moment I fell in love. I fell in love with standing up for freedom. I fell in love with the heat of battle and the worldview war. That night in Sacramento, California, I fell in love with activism.

Fast forward to this week.

On Thursday, the U.S. Court of Appeals for the Seventh Circuit brought the hammer down on traditional marriage. The unanimous bench declared that “homosexuals are among the most stigmatized, misunderstood, and discriminated-against minorities in the history of the world.” The Court ruled that tradition, no matter how foundational, cannot be the basis of justifying “discrimination,” and that the State’s interest in advancing procreation was “So full of holes that it cannot be taken seriously.”

Check out my detailed news coverage of this story here.

To understand this story in context, I need to finish my story.

After the Prop 8 campaign, my path took me deeper into politics. It exposed me to work on lobbying to protect DOMA when the “Respect for Marriage Act” would have overturned it. It led me to volunteer in the cases that took Proposition 8 up through the appeals process by helping draft amicus briefs. It led me to pursue law as a profession.

On June 26, 2013, I was there again. Not in Sacramento where we passed Prop 8, but in Washington, D.C. where they overturned it. I had just finished my first year of law school, and I was interning for a public policy organization in Washington. I went that morning to the front steps of the Supreme Court with other activists. We were expecting to find two cheering crowds representing both sides of the debate.

We were sorely mistaken.

On the front steps, overflowing out across the street, bustling about in all directions was a massive anti-marriage crowd. They were protesting so loud you couldn’t hear yourself think. While the packed courtroom walked through its pre-announcement formalities, I have no doubt that those inside could hear them loud and clear.

Up for decision were U.S. v. Windsor, the challenge to DOMA, and Perry v. Brown, the challenge to Prop 8 from California. Like my first experience in politics, this day ended in triumphant shouts, but not from the same side.

The Supreme Court declared that the federal government could not define marriage as between one man and one woman, and, in a classic political dodge, deflected the question of state marriage laws for another day. Although Windsor spent a few pages touching on the rights of states to regulate it for themselves, it spent countless pages condemning even the thought of defining marriage at the federal level, accusing Congress of animus and hatred against gay people.

While Justice Kennedy’s majority opinion claimed the states would be able to define marriage for themselves, let’s not forget how he arrived at his conclusion in Windsor. Ten years earlier, he wrote the Court’s opinion in Lawrence v. Texas, legalizing same-sex relationships. In that decision, he claimed that the rule would never affect marriage itself. Yet ten years after Lawrence, he cited his own opinion as the basis for redefining marriage in Windsor.

The seed that Justice Kennedy planted in Lawrence sprouted in Windsor, and it will bear fruit in the next case if we don’t nip it in the bud. He may try to promise in 2013 that he will not touch state marriage laws, just like he promised in 2003 that he would not touch marriage at all, but let history tell us whether politicians can be trusted.

Since those decisions last summer, the lower courts have entered a free-for-all feeding frenzy. Kennedy’s majority opinion demonstrated the High Court’s disregard for legal authority, and their willingness to pull nebulous new standards out of thin air as they go along. As a consequence, lower courts could rule either way on state marriage laws, but they have overwhelmingly opted to rip traditional marriage up by its roots.

The Supreme Court almost seems to be testing the waters. As though the swing votes on the bench hoped to redefine marriage, but they needed to see first whether public opinion would stomach it. They may have maneuvered out of deciding the issue of state marriage laws the first time around, but their real decision cannot be more than a year or two away. Already they have stayed the enforcement of multiple Circuit Court decisions, which simply means that they will address the issue themselves very soon.

In short, Windsor and Perry did not establish a standard, they removed all certainty. They left every court and every citizen in America wondering what the law is or what it will be tomorrow. There is no standard in Windsor, only a deliberate experiment in chaos.

And in the void left by the collapse of law, there is room to build a new standard. A standard in which tolerance transforms into the new tyranny.

As Mat Staver, Founder and Chairman of Liberty Counsel, said Thursday in response to the Seventh Circuit rulings: “Fundamentally speaking, what is on trial in these cases is not marriage, but the judiciary itself. The question is whether the courts will uphold the rule of law or whether they will overreach the Constitution and force us all to embrace their vision of public policy.”

I could not agree more. This question goes to the very root of our form of government. Will we be governed under the rule of law, or by nine life-appointed philosopher kings? Will we be governed by the vote of our people, or by helplessly watching black-robed demigods use the pretense of law to experiment with chaos?

I will never forget being there in Sacramento the day we passed Proposition 8. I will never forget being there on the steps of the Court the day they shot it down. Few people were privileged to be present on both days, but I was not the only one who was involved in the battle.

Fighting the good fight has always been the greatest privilege, win or lose. From my first foray into activism, up until last summer, then on into the present and the future, the same war of the worldviews is will go on.

So while the judiciary is on trial to determine whether it will uphold the law, even more so we are on trial.

Every one of us is on trial in these cases to determine whether we will sit idly by while our courts destroy the law. Will we bow to the radicalized and militant minority who wants to destroy our heritage, or will we rise to the occasion and pass it on?

That case is for every one of us to decide.

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James Tennant

Necropolis: A mysterious stranger, proclaiming a dangerous creed… A jihadist preparing for paradise… A humanist, a priest, an abortionist, zealous for a new world order… The President of the United States, eager to secure his place in history… The city where the ancient battle is rejoined.


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