By Professor Brian M. McCall, Esq.
Editor’s Note: The following article was published on the website of Catholic Family News. It has been reprinted here with the permission of the author Mr. Brian McCall. Part I of the article can be found here.
False Liberty
The next Modernist error of Justice Kennedy that we will consider in this article is his false definition of liberty. The Church has always taught that liberty is the power to act according to right reason. [1] Liberty is the ability intentionally to do what is good. The Liberal and erroneous definition of liberty is the power intentionally to act in whatever way one chooses regardless of whether the act be good or evil. As Leo XIII rightly pointed out this erroneous idea of liberty is ridiculous. “[I]f the possibility of deflection from good [doing evil] belonged to the essence or perfection of liberty, then God, Jesus Christ, and the angels and saints, who have not this power, would have no liberty at all, or would have less liberty than man has in his state of pilgrimage and imperfection.” [2]
Since the Enlightenment and the French Revolution, Liberalism and its child Modernism have been trying to change the definition of liberty from the power to do what is good to the power to do whatever anyone wants. This error tries to make liberty neutral as between good and evil and to distort a right to do good into a right to do evil. Evil and error have no right to be done but are rather slavery and the lack of freedom.
Yet, since Vatican II, this erroneous expansion of Liberty has received at least an ambiguous and tacit approval by the official hierarchy. Digitatis Humane defines liberty of religion as the freedom to practice whatever religion (true or false) one chooses rather than the freedom to practice the true religion. This Modernist error is another pillar on which Justice Kennedy rests his decision.
Kennedy argues from the opening of the opinion that the case is about liberty: ““The petitioners in these cases seek to find that liberty by marrying someone of the same sex.” From this first statement of the issue, he reveals his erroneous understanding of liberty as the freedom to do whatever a person wants regardless of whether the action is good or evil. These plaintiffs wish to express their choice that non-marital acts are marital acts and the law’s denial of their desire is a deprivation of liberty. He defines liberty subjectively as whatever anyone wants to do, regardless of its moral quality. He claims the Constitution guarantees a right to this false liberty.
He argues: “The Constitution promises liberty to all. . . that allows persons within a lawful realm, [3] to define and express their identity. . . . [T]hese liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Unlike the plaintiffs in Loving who were denied the ability to enter into a valid marriage, these plaintiffs are laying claim to a false liberty (known as license) by doing what they want rather than doing good.
This erroneous understanding of liberty, condemned by the Church, is connected to Kennedy’s erroneous understanding of dignity. Kennedy incorrectly locates human dignity in this false liberty. Dignity is about having the freedom to choose wrong. He asserts that “personal choices [are] central to individual dignity.” Elsewhere he asserts “that gays and lesbians had a just claim to dignity.” But he locates human dignity in a false liberty to do wrong. His understanding of the relationship between human dignity and liberty is contrary to Catholic teaching succinctly reiterated by Leo XIII who said that true liberty means “that every man in the State may follow the will of God and, from a consciousness of duty and free from every obstacle, obey His commands. This, indeed, is true liberty, a liberty worthy of the sons of God, which nobly maintains the dignity of man and is stronger than all violence or wrong - a liberty which the Church has always desired and held most dear.” Man’s true dignity lies in the liberty to do the will of God in all things not one’s own will to do evil.
Connected to his Liberal distortion of liberty and dignity is a false notion of equality. Kennedy, joined by Sotomayor, asserts that equality requires everyone should receive the same consequences no matter what they do. True Equality means that like cases should be treated alike. Two male/female couples should both equally be permitted to marry as they are both doing the same thing. It does not violate equality to treat people who want to do different things, differently. He says it is “unequal” when “same-sex couples are denied all the benefits afforded to opposite-sex couples.” This statement is equivalent to saying that it is unequal to graduate a student who passed his exams and refuse to graduate a student who failed them all. The student who failed the exams is not getting equal treatment with the one who passed and is denied the benefit of graduating. The simple truth is both students have done different actions and thus deserve different consequences. The plaintiffs in the case are not denied the benefits of marriage if they actually marry someone. They want to engage in acts and a lifestyle that is not marriage, but only a simulation of marriage, yet still receive the benefits of marriage. Conferring the legal status of “married” on them actually violates equality with respect to the validly married as it treats different cases alike.
Yet, Modernism in its worship of false liberty wants to wipe away all distinctions in actions so that all should be treated alike regardless of what they do. Kennedy’s logic is akin to the Modernist error of universal salvation. It would be inequitable if some people were denied the benefit of heaven so nobody, not even unrepentant sinners, must be in hell.
Finally, Kennedy blends into his Modern syllabus a false and neutered freedom of religion that privatizes religion and makes it irrelevant. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” He politely taps on the head those who, unlike himself, actually believe the truths revealed by God and sends them off to the corner to be quiet.
Religious belief is fine with Kennedy as long as it is kept quiet and irrelevant to civil life. Christ and his revealed truth may not reign in America but is banished to the sidelines to languish in the minds of those who are behind the times and evolution of Marriage. They can say privately in their little churches what they want but it has no place in the law. He has adopted the 19th Century Liberal mantra: A Free Church in Free State. The Church can keep her beliefs if she keeps them to herself to let everyone else be free to sin boldly.
“Finally,” Kennedy writes, “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Yet, this is a lie. He knows the other shoe is ready to drop. The Church will be sued for discrimination when she refuses to recognize as marriages same sex living arrangements accepted as “marriage” by the law. When she refuses to “marry” these people she will be sued for discriminatorily denying them their liberty. The “freedom” to cling to unevolved divine revelation that is irrelevant to law and public policy is an illusion of freedom.
Morality put to Vote?
Before concluding our review of this event that will live in infamy, we must pause to note the pathetic opposition of the Catholics who opposed the result of nullifying a few states’ laws refusing to recognize same-sex acts and living arrangements as marriage. They threw up an unprincipled and timid objection. Although, at least for now, they would not open the flood gates completely to this vice, they merely wish to delay its opening and shift the responsibility for it to somebody else.
Essentially the main argument of the four dissenters is that the Supreme Court is merely the wrong legal institution to make this change. The people should vote to decide the issue. They raise no objection to the legal insanity of calling a non-marriage a marriage, they simply argue that the Supreme Court should not be the ones to do it.
The saddest example of this lukewarm argument can be found in the dissent written by Justice Scalia. “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangments it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences--can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me.” (emphasis added)
In other words, the Catholic Justice Scalia, whose own son is an ordained priest and who reportedly attends a Traditional Mass in Washington D.C., publicly declares that he couldn’t care less if the law of the United States directly contradicted divine and natural law and awarded the benefits of marriage to non-marriages (adding a half-hearted speculation that maybe doing so might have some social effects). All he cares about is that this erroneous decision should be made by somebody else – the vote of the people or legislators – and not the Supreme Court.
This is the most we are to expect of Catholic public figures and icons today? They either outright embrace Modernism and all of its practical consequences (as do Kennedy and Sotomayor) or they just don’t care that the world is spiraling further and further into the depravity of the time of Noah (like the dissenters).
All I can say is that if you are concerned about the case of Obergefell et al. v. Hodges, the people to blame are the Catholics. This scandalous decision was rendered not when Catholics were excluded from positions of legal power but when two-thirds of the highest Justices in the land were Catholics. Two were so open to the world that they embraced the errors of the world condemned explicitly by sacred scripture, Blessed Pius IX, Leo XIII, and St. Pius X and others. The four others threw their hands up and failed to defend the honor of God and the truth. The most they did was file a half-hearted protest to let the legislatures or people vote.
The Liberal majority acknowledged where this process would lead: the eventual legalization of same-sex “marriage” in every state since that was the overwhelming trend in recent years. The dissent would thus only delay the inevitable outcome of unprincipled democracy. Yet, they love the process more than the truth and object merely to the process not the substance of the Majority’s Modernist ridden opinion. May God have mercy on us all!
Notes:
[1] See e.g. Leo XIII, Libertas No. 6.
[2] Ibid.
[3] For Kennedy a meaningless phrase akin to the “due limits” stuck in Digitatis Humane to appease the conservative Fathers but which does not undue the harm done by proclaiming a universal right to practice in public whatever religion seems best to each individual.
Editor’s Note: The following article was published on the website of Catholic Family News. It has been reprinted here with the permission of the author Mr. Brian McCall. Part I of the article can be found here.
False Liberty
The next Modernist error of Justice Kennedy that we will consider in this article is his false definition of liberty. The Church has always taught that liberty is the power to act according to right reason. [1] Liberty is the ability intentionally to do what is good. The Liberal and erroneous definition of liberty is the power intentionally to act in whatever way one chooses regardless of whether the act be good or evil. As Leo XIII rightly pointed out this erroneous idea of liberty is ridiculous. “[I]f the possibility of deflection from good [doing evil] belonged to the essence or perfection of liberty, then God, Jesus Christ, and the angels and saints, who have not this power, would have no liberty at all, or would have less liberty than man has in his state of pilgrimage and imperfection.” [2]
Since the Enlightenment and the French Revolution, Liberalism and its child Modernism have been trying to change the definition of liberty from the power to do what is good to the power to do whatever anyone wants. This error tries to make liberty neutral as between good and evil and to distort a right to do good into a right to do evil. Evil and error have no right to be done but are rather slavery and the lack of freedom.
Yet, since Vatican II, this erroneous expansion of Liberty has received at least an ambiguous and tacit approval by the official hierarchy. Digitatis Humane defines liberty of religion as the freedom to practice whatever religion (true or false) one chooses rather than the freedom to practice the true religion. This Modernist error is another pillar on which Justice Kennedy rests his decision.
Kennedy argues from the opening of the opinion that the case is about liberty: ““The petitioners in these cases seek to find that liberty by marrying someone of the same sex.” From this first statement of the issue, he reveals his erroneous understanding of liberty as the freedom to do whatever a person wants regardless of whether the action is good or evil. These plaintiffs wish to express their choice that non-marital acts are marital acts and the law’s denial of their desire is a deprivation of liberty. He defines liberty subjectively as whatever anyone wants to do, regardless of its moral quality. He claims the Constitution guarantees a right to this false liberty.
He argues: “The Constitution promises liberty to all. . . that allows persons within a lawful realm, [3] to define and express their identity. . . . [T]hese liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.” Unlike the plaintiffs in Loving who were denied the ability to enter into a valid marriage, these plaintiffs are laying claim to a false liberty (known as license) by doing what they want rather than doing good.
This erroneous understanding of liberty, condemned by the Church, is connected to Kennedy’s erroneous understanding of dignity. Kennedy incorrectly locates human dignity in this false liberty. Dignity is about having the freedom to choose wrong. He asserts that “personal choices [are] central to individual dignity.” Elsewhere he asserts “that gays and lesbians had a just claim to dignity.” But he locates human dignity in a false liberty to do wrong. His understanding of the relationship between human dignity and liberty is contrary to Catholic teaching succinctly reiterated by Leo XIII who said that true liberty means “that every man in the State may follow the will of God and, from a consciousness of duty and free from every obstacle, obey His commands. This, indeed, is true liberty, a liberty worthy of the sons of God, which nobly maintains the dignity of man and is stronger than all violence or wrong - a liberty which the Church has always desired and held most dear.” Man’s true dignity lies in the liberty to do the will of God in all things not one’s own will to do evil.
Connected to his Liberal distortion of liberty and dignity is a false notion of equality. Kennedy, joined by Sotomayor, asserts that equality requires everyone should receive the same consequences no matter what they do. True Equality means that like cases should be treated alike. Two male/female couples should both equally be permitted to marry as they are both doing the same thing. It does not violate equality to treat people who want to do different things, differently. He says it is “unequal” when “same-sex couples are denied all the benefits afforded to opposite-sex couples.” This statement is equivalent to saying that it is unequal to graduate a student who passed his exams and refuse to graduate a student who failed them all. The student who failed the exams is not getting equal treatment with the one who passed and is denied the benefit of graduating. The simple truth is both students have done different actions and thus deserve different consequences. The plaintiffs in the case are not denied the benefits of marriage if they actually marry someone. They want to engage in acts and a lifestyle that is not marriage, but only a simulation of marriage, yet still receive the benefits of marriage. Conferring the legal status of “married” on them actually violates equality with respect to the validly married as it treats different cases alike.
Yet, Modernism in its worship of false liberty wants to wipe away all distinctions in actions so that all should be treated alike regardless of what they do. Kennedy’s logic is akin to the Modernist error of universal salvation. It would be inequitable if some people were denied the benefit of heaven so nobody, not even unrepentant sinners, must be in hell.
Finally, Kennedy blends into his Modern syllabus a false and neutered freedom of religion that privatizes religion and makes it irrelevant. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.” He politely taps on the head those who, unlike himself, actually believe the truths revealed by God and sends them off to the corner to be quiet.
Religious belief is fine with Kennedy as long as it is kept quiet and irrelevant to civil life. Christ and his revealed truth may not reign in America but is banished to the sidelines to languish in the minds of those who are behind the times and evolution of Marriage. They can say privately in their little churches what they want but it has no place in the law. He has adopted the 19th Century Liberal mantra: A Free Church in Free State. The Church can keep her beliefs if she keeps them to herself to let everyone else be free to sin boldly.
“Finally,” Kennedy writes, “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Yet, this is a lie. He knows the other shoe is ready to drop. The Church will be sued for discrimination when she refuses to recognize as marriages same sex living arrangements accepted as “marriage” by the law. When she refuses to “marry” these people she will be sued for discriminatorily denying them their liberty. The “freedom” to cling to unevolved divine revelation that is irrelevant to law and public policy is an illusion of freedom.
Morality put to Vote?
Before concluding our review of this event that will live in infamy, we must pause to note the pathetic opposition of the Catholics who opposed the result of nullifying a few states’ laws refusing to recognize same-sex acts and living arrangements as marriage. They threw up an unprincipled and timid objection. Although, at least for now, they would not open the flood gates completely to this vice, they merely wish to delay its opening and shift the responsibility for it to somebody else.
Essentially the main argument of the four dissenters is that the Supreme Court is merely the wrong legal institution to make this change. The people should vote to decide the issue. They raise no objection to the legal insanity of calling a non-marriage a marriage, they simply argue that the Supreme Court should not be the ones to do it.
The saddest example of this lukewarm argument can be found in the dissent written by Justice Scalia. “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangments it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences--can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me.” (emphasis added)
In other words, the Catholic Justice Scalia, whose own son is an ordained priest and who reportedly attends a Traditional Mass in Washington D.C., publicly declares that he couldn’t care less if the law of the United States directly contradicted divine and natural law and awarded the benefits of marriage to non-marriages (adding a half-hearted speculation that maybe doing so might have some social effects). All he cares about is that this erroneous decision should be made by somebody else – the vote of the people or legislators – and not the Supreme Court.
This is the most we are to expect of Catholic public figures and icons today? They either outright embrace Modernism and all of its practical consequences (as do Kennedy and Sotomayor) or they just don’t care that the world is spiraling further and further into the depravity of the time of Noah (like the dissenters).
All I can say is that if you are concerned about the case of Obergefell et al. v. Hodges, the people to blame are the Catholics. This scandalous decision was rendered not when Catholics were excluded from positions of legal power but when two-thirds of the highest Justices in the land were Catholics. Two were so open to the world that they embraced the errors of the world condemned explicitly by sacred scripture, Blessed Pius IX, Leo XIII, and St. Pius X and others. The four others threw their hands up and failed to defend the honor of God and the truth. The most they did was file a half-hearted protest to let the legislatures or people vote.
The Liberal majority acknowledged where this process would lead: the eventual legalization of same-sex “marriage” in every state since that was the overwhelming trend in recent years. The dissent would thus only delay the inevitable outcome of unprincipled democracy. Yet, they love the process more than the truth and object merely to the process not the substance of the Majority’s Modernist ridden opinion. May God have mercy on us all!
Notes:
[1] See e.g. Leo XIII, Libertas No. 6.
[2] Ibid.
[3] For Kennedy a meaningless phrase akin to the “due limits” stuck in Digitatis Humane to appease the conservative Fathers but which does not undue the harm done by proclaiming a universal right to practice in public whatever religion seems best to each individual.
After 9 years in private practice with the international law firm Dechert LLP, Professor McCall joined the faculty of the University of Oklahoma College of Law in 2006. As a practicing lawyer, he represented a variety of companies and banks in international merger and acquisition and corporate finance transactions. Seven years were spent in the firm's London office as an Associate and Partner. Professor McCall teaches classes in Contracts, Payment Systems, Secured Transactions and Corporate Finance. He publishes in the field of Commerical and Business law with an emphasis on the jurisprudence and philosophy of economic legal regulation. His scholarly research is rooted in a natural law jurisprudence.
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