The majority opinion in Obergefell, written by Justice Kennedy, opens with a grand claim about the nature of freedom: “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.” From this premise the decision follows. Add a truism of our age, which is that homosexual desires constitute an “identity,” and the syllogism is complete. The Constitution’s promise of liberty requires us to redefine marriage to allow men to marry men and women to marry women so that they can “express their identity.”
In this issue, Michael Stokes Paulsen analyzes Kennedy’s legal reasoning, such as it is. But I want to stick to his claim about liberty’s relation to identity. For this claim expresses a false and dishonest view.
On the one hand, Kennedy suggests that my identity is more than my will or free choice. It’s essential to me, and a just society provides the freedom to live in accord with my essential identity. Taken a certain way, that’s correct. I have an identity as a rational animal, and genuine freedom must include the liberty to make and consider arguments. Our constitutional rights of free speech and freedom of the press serve to promote that kind of freedom. I’m also a social animal, as well as a religious one. The constitutional rights of freedom of association and religion honor those aspects of my identity.
