In Planned Parenthood v. Casey, the US Supreme Court case governing abortion rights, Justice Anthony Kennedy embraced an understanding of liberty and law that American culture generally, and unfortunately, accepts. As stated in Casey—and again in Kennedy’s opinion in Lawrence v. Texas (crafting a right to consensual sodomy)—liberty is “the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.” Especially in the areas of marriage, family, child-rearing, and education, autonomy is so “central” that personal beliefs about these matters are beyond society’s scope to inform or regulate.
Despite the “mystery of life” lacking any obvious principled limitation, Justice Kennedy still seems surprised that many Americans take its grandiosity at face value. During the oral arguments on the Proposition 8 case, he thought it a “problem” that proponents of a right to same-sex marriage wanted “to go into uncharted waters,” analogizing doing so to a “cliff.” He seemed uncomfortable when Prop 8’s challengers argued that once a state begins recognition of something (like same-sex civil unions), it has only two choices: advance it absolutely (to marital status), or advance it incrementally.
Kennedy’s surprise at how far some take his “mystery of life” language shows up elsewhere in abortion-rights cases and drug-use cases. His surprise might be because he has tried to tame that language with pragmatic limits. He wrote that Lawrence would not bear upon a variety of areas where social mores inform legal status: prostitution, public conduct, private conduct with minors, nonconsensual or physically harmful activities, or even “whether the government must give formal recognition to any relationship that homosexual persons seek to enter.”
Kennedy’s opinion in United States v. Windsor confirms that these pragmatic limits are subjected to society’s “emerging awareness” of novel moral ideas. In Lawrence, ethical and moral beliefs surrounding sexual conduct were considered “profound and deep concerns” worthy of social respect—though not through the criminalization of sodomy. The Court never said, however, that “conceptions of right and acceptable behavior” are inappropriate to law-making generally. Ten years later in Windsor, where the Court struck down the federal government’s reliance on the traditional definition of marriage, a definition in effect when Lawrence was decided, Kennedy—without explanation—now called related beliefs laden with “animus.”
If left purely to the principle that the “mystery of life” passage enunciates, as Justice Scalia said in Lawrence, it would be the “passage that ate the rule of law”—it consumes society’s ability to “regulate actions based on one’s self-defined ‘concept of existence.’”
The “mystery of life’s” development in legal interpretation coincides with how Americans comprehend the broader idea of the law as a limit on personal conduct.
On the one hand, modern American culture, as noted historian Jacques Barzun observed in his New York Times bestseller From Dawn to Decadence, has a superficial understanding of liberty: “nothing stands in the way of every wish.” The cries against “imposing values” and “legislating morality” echo this sentiment.
It would be easy to think that the prominence of such calls suggests a general erosion of public morality within law. A recent Slate article endorsed decriminalizing polygamy, because marriage as a social institution has to be “plastic” so as to fit every relationship’s structure.
Not even health-and-safety regulations of abortion clinics are immune to the “legislating morality” critique, as the Kermit Gosnell trial sadly revealed.
Yet, on the other hand, much like Kennedy, many of the same Americans who embrace the autonomy of the “mystery of life” still think the law should bear upon some personal choices. San Francisco, despite its medical marijuana clubs and festivals for sadomasochism, preserved its ban on prostitution twice in the past ten years—by a 60/40 margin in 2011.
And despite contrary Supreme Court precedent, residents of Middleborough, Massachusetts, voted 183-50 to make public cursing a civil offense in 2012. And even while a growing number of Americans support redefining marriage to include same-sex relationships, there is uniformly high moral disapproval of polygamy—even younger Americans give it only a 19 percent approval rating.
While Justice Kennedy may be able to distinguish or ignore the “mystery of life” analysis when applying legal precedents, those charged with making publicly reasonable laws have to have a principle—a rational basis—to regulate some moral choices but not others. On what basis can Americans embrace “the right to define one’s own concept of existence,” while still regulating some of the conduct one uses to define that existence?
With an increasing refusal to publicly embrace any form of social morality except the autonomy explained within the “mystery of life” language, we have allowed its logic to erode a common social language by which to defend social mores. This reality is perhaps most evinced by younger Americans.
In 2008, sociologist Christian Smith interviewed 230 Americans 18-to-23 years old about moral dilemmas, and published his findings in his book Lost In Transition. The results showed a broad agnosticism about moral issues, consistent with Kennedy’s “mystery of life” philosophy. As recounted by David Brooks after the book’s release:
“Not many of them have previously given much or any thought to many of the kinds of questions about morality that we asked,” Smith and his co-authors write. When asked about wrong or evil, they could generally agree that rape and murder are wrong. But, aside from these extreme cases, moral thinking didn’t enter the picture, even when considering things like drunken driving, cheating in school or cheating on a partner. “I don’t really deal with right and wrong that often,” is how one interviewee put it.
The default position, which most of them came back to again and again, is that moral choices are just a matter of individual taste. “It’s personal,” the respondents typically said. “It’s up to the individual. Who am I to say?”
Brooks argues that younger Americans will grow out of their relativism as they “get married, have kids, enter a profession or fit into more clearly defined social roles.” His retort here is akin to those who brush off the erosion of standards by younger Americans with a sentiment similar to that echoed by Wilco: “Come on . . . every generation thinks it’s the end of the world.”
Yet the “mystery of life” passage is targeted at the very social spheres that craft socially needed behavior. These spheres—marriage, child-rearing, family, and education—see the “mystery of life” at its zenith according to Casey. They involve, in Casey’s words, “the most intimate and personal decisions a person may make in a lifetime, choices central to personal dignity and autonomy” (emphasis added).
Incorporating the “mystery of life” logic into these spheres deludes individuals into thinking that personal failures in socially important roles only have personal consequences. Society thus lacks the authority to explain how the personal choice of one hurts the wellbeing of others.
In other words, society cannot say whether marriage ensures that children have the benefit of a mother and a father—marriage is whatever a person wants it to be. Society cannot say whether a child suffers from no-fault divorce—divorce is a personal choice. Society cannot say whether a child is raised by parents in a relationship that society needs to survive—relationships are personal.
Should the detriments of a child’s upbringing become a social harm when he takes society’s reins as an adult, that new adult now also lacks the right moral framework to refine social standards for the benefit of his children. Life’s “mystery” about what crafts and constitutes good conduct thus endures—even when harmful consequences counsel society to encourage some choices over others from reason and experience.
What is more, lacking this alternative framework to the “mystery of life” philosophy makes even good-faith attempts to preserve social mores rooted in little more than a sand castle of arbitrariness. As it would be an imposition of values to have an agreed-upon moral standard on such “personal” matters, any regulating a majority does of such things cannot possess a principle. As a mere temporary convergence of people’s respective definitions of self-existence, society is thus at a loss to explain the incoherence of respecting “autonomy” while also “imposing values.”
This raises the question: referencing Lawrence’s language, is whatever “awareness” on a given moral question that “emerges” from society at present more tenable for social mores than immutable truths revealed from wisdom that refine our understanding of human nature and the good?
The founders surely did not think so. Part of the point of preserving local authority to regulate the health, safety, and welfare of the community (the “police power”) was for these localities to derive truth from experience and wisdom, and act in accordance with it. In Federalist 49, James Madison sees little that the “reason of man” can derive about truth in a society indifferent to expressing any defined truths. Nothing more than “timid and cautious” conclusions of truth could come from such a course—a fact we see in the reluctance of young Americans to articulate even tentative moral conclusions.
On the contrary, Madison argues, democracy’s legitimacy in providing man a society to grow toward truth has a “double effect” when majority rule relies on “ancient” truth to inform its decisions. In such a society, one has the freedom to choose the good—a discernible good revealed by experience, reason, and wisdom. The alternative is a majority rule where individuals are solely concerned with their own self-discovery. Their laws are just a preponderance of coincidence within their respective quests for meaning on a given issue. The legitimacy of such rule, especially when all are entitled to determine their own meaning in the universe, seems dubious.
Personal exploration is part and parcel of deriving the truth, but letting life’s “mystery” linger in socially essential areas where wisdom has already come mistakes delusion for discovery. The “mystery of life’s” limitless respect for “self-discovery” requires willful blindness toward discovered truths of human experience, unless one chooses to adopt them only as a “lifestyle choice.” This leads adherents to the “mystery of life” to lack any agreed-upon moral framework to defend the order needed for liberty’s survival. The result is a society that talks past itself when attempting to understand its codified standards—an ironic proof of Casey’s observation that “liberty finds no refuge in a jurisprudence of doubt.”
William J. Haun, Esq., writes from Chevy Chase, Maryland.