When President Obama was first running for office in 2008, he promised that he’d go about “fundamentally transforming” America once in office.
But it wasn’t the 47-year-old Senator from Illinois — who went on to win two presidential elections — who’d bring about such a transformation. It was a 78-year-old unelected Supreme Court justice from California named Anthony Kennedy.
That, at least, is the conclusion one can draw from a compelling column in the Sunday Washington Post by legal scholar Jonathan Turley about Kennedy’s Obergefell v. Hodges decision.
Turley notes that Kennedy, pretty much all on his own, has fashioned over the years the idea that there’s a “right to dignity” embedded in the Constitution.
“Kennedy wove this concept of protected dignity through a series of cases,” Turley explains, which “peaked with Obergefell, which he described as an effort by the petitioners to secure ‘equal dignity in the eyes of the law.'”
(By the way, Turley supports gay marriage and is generally a liberal on other issues.)
The problem, Turley notes, is that Kennedy’s inferred right to dignity could easily conflict with the First Amendment’s stated rights to free speech and free exercise of religion.
“Should the right to dignity trump free speech and free exercise?” Who knows, Turley says. It will up to the courts to decide.
We already know what will happen if it does go that route.
In Canada, for example, a comedian was found guilty of violating human rights “after he got into a trash-talking exchange during an open-mike night.” France prosecuted a comedian for making jokes deemed anti-Semitic. People in Greece and Italy have been similarly prosecuted for saying things that allegedly harmed someone else’s dignity.
Turley says that criminalizing “hate speech” in the U.S. “could now be justified as protecting the dignity rights of groups and balancing the ‘danger’ of free speech.”
Were that to come about, it would be far more fundamentally transformative to the land of the free and the home of the brave than anything that Obama, or any other elected official, could have ever hoped to achieve.
After all, ObamaCare can be repealed, Obama’s executive orders rescinded, his regulations undone and his spending and tax hikes reversed.
But the court lives by the doctrine of “stare decisis” — a Latin term that means to stand by things that have been settled. So however the Supreme Court decides to define Kennedy’s new “right to dignity,” it will be as close to permanent as anything can get in this country.
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