Justice Kennedy: Pro-Polygamous "Marriage"

Here are some of the most memorable quotations from Kennedy's recent SCOTUS opinion.  I have taken the liberty of modifying his words to fit with polygamous marriage.  As an exercise for the reader, see what other types of marriage you can come up with.  Once the reader gets a feel for the point of this little exercise, feel free to skip to Scalia's remarks below.

“The ancient origins of marriage confirm its centrality, but it has not stood in isolation from developments in law and society. The history of marriage is one of both continuity and change. That institution — even as confined to opposite-sex relations — has evolved over time.”

“Until the mid-20th century, polygamous intimacy long had been condemned as immoral by the state itself in most Western nations, a belief often embodied in the criminal law. For this reason, among others, many persons did not deem polygamous people to have dignity in their own distinct identity. A truthful declaration by polygamous people of what was in their hearts had to remain unspoken.”

“The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight [what insight?] reveal discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.”

“The nature of marriage is that, through its enduring bond, at least two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation…There is dignity in the bond between at least two men or two women who seek to marry and in their autonomy to make such profound choices.”

“Marriage responds to the universal fear that a lonely person might call out only to find no one there. It offers the hope of companionship and understanding and assurance that while both still live there will be someone to care for the other.”

“[W]hile Lawrence confirmed a dimension of freedom that allows individuals to engage in intimate association without criminal liability, it does not follow that freedom stops there. Outlaw to outcast may be a step forward, but it does not achieve the full promise of liberty.”

“Without the recognition, stability, and predictability marriage offers, their children suffer the stigma of knowing their families are somehow lesser.”

“Polygamous people are consigned to an instability many monogamous couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that polygamous people are unequal in important respects. It demeans those who seek polygamy for the State to lock them out of a central institution of the Nation’s society.”

“Especially against a long history of disapproval of their relationships, this denial to polygamous people of the right to marry works a grave and continuing harm. The imposition of this disability on polygamous people serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.”

“It is of no moment whether advocates of polygamous marriage now enjoy or lack momentum in the democratic process. The issue before the Court here is the legal question whether the Constitution protects the right of people seeking to be in a polygamous relationship to marry.”

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, at least two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Now Scalia:

“The world does not expect logic and precision in poetry or inspirational pop-philosophy; it demands them in the law.”

“If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”