By David K. Shipler
If you
spend time reading the Supreme Court’s majority and dissenting opinions in the
landmark same-sex marriage case, a transcendent principle jumps out at you. It
has little to do with the definition of marriage or the widening acceptance of
homosexuality. Rather, it is the notion that society should be alive to its own
injustices, even those unseen in the age when solemn constitutional texts were
written. Later—nearly 150 years later in this instance—practices that were once
acceptable emerge as violations of the rights set down at a very different
time.
This is the crux of the ideological
dispute between conservatives and liberals on the Court, and it is articulated
in this case with unusual clarity. The conservative dissenters define liberty
in the narrowest terms—to Clarence Thomas it means freedom from physical
restraint and imprisonment, nothing more.
To Antonin Scalia, the clock simply
has to be turned back to the date of the post-Civil War Fourteenth Amendment, whose
clauses banned the states from denying any person “the equal protection of the
laws” or depriving anyone “of life, liberty, or property, without due process of law.” Those were the
provisions that the Supreme Court found were being violated by denying same-sex
couples the right to marry.
Scalia scoffed. “When the
Fourteenth Amendment was ratified in 1868,” he wrote, “every state limited
marriage to one man and one woman, and no one doubted the constitutionality of
doing so.” Case closed.
Compare that with Anthony Kennedy’s
fluid view of liberty in his opinion for the slim 5-4 majority. Kennedy is not
easily categorized as liberal or conservative; he is often a swing vote. Here,
however, he effectively endorses the liberal concept of a living Constitution by
emphasizing its place in a shifting world.
