Justice Kennedy’s opinion in Obergefell v. Hodges finding a Constitutional right to gay marriage doesn’t really bother to cite a legal justification, instead relying on florid exaltations of “love, fidelity, devotion, sacrifice, and family” and an aw-shucks conclusion that laws against gay marriage “burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality.” His nominal Constitutional reference point is the Fourteenth Amendment, that contemporary cannon in which all manner of federally-provided goodies are loaded and splayed about the populace.
Suppose a future Congress were to pass a law criminalizing “hate speech.” Such a law would, contrary to the willful understanding of much of our popular culture, be unconstitutional, at least as of June 25, 2015. However, if a respondent (say, a future Democratic Solicitor General) defending such a law were to assert that “hate speech” uttered by a hateful hater effectively prevented the victim from enjoying her civil rights, or from fully participating in society—which is the position of many universities, the NAACP, and plenty of others on the mainstream left—then couldn’t the Supreme Court uphold the law under the same principles as the Obergefell decision?
If the First Amendment to the Constitution protects hate speech, Justice Kennedy might hold, then the First Amendment itself “burdens the liberty of minorities subjected to hate speech, and it must be further acknowledged that it abridges central precepts of equality.”
Consider another passage from the Obergefell decision:
The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution’s central protections and a received legal stricture, a claim to liberty must be addressed.
Unlike in the case of the desire among gay people to get married, our founders did understand the concept of speech that would offend people and explicitly decided that the value of free speech outweighs the consequences of hurt feelings. First Amendment rights in the U.S. are generally not subject to the left’s beloved concept of “balancing tests” (issues related to national security are an exception), but Kennedy’s fuzzy language leaves much to the imagination as to how a future Court might decide to construe liberty.
Other countries that have historically cherished free speech have carved out exceptions, such as the criminalization of “racism” in the U.K. or of denial of the Holocaust in France. The fact that America’s democratically-elected representatives have attempted many abridgments of free speech over the years certainly proves that there exist ongoing differences of opinion on “the extent of freedom in all of its dimensions.”
Now that the Supreme Court has again interpreted “a claim to liberty” as the right to receive benefits from the government as a married gay couple—as opposed to the founders’ notions of liberty as freedom from coercion by the government—it does not seem too much of a stretch to think that a future Court acting on this precedent would discover that an American in a protected class demanding protection from hateful speech is entitled to rectification of a similar “claim to liberty” that must be balanced with free speech rights.
Such a purported victim need only claim that his Fourteenth Amendment Due Process and/or Equal Protection rights have been violated in some vague manner to assert the primacy of that Amendment over the speaker’s rights to free speech. After all, the Fourteenth Amendment was passed subsequently to the First, so there is no reason why the former could not be deemed to supersede the latter.
Justice Thomas notes in his dissent, “inversion of the original meaning of liberty will likely cause collateral damage to other aspects of our constitutional order that protect liberty.”
By the way, it is not that difficult to imagine extending the same argument to require a balancing of Fourteenth Amendment rights with those protected by the Second Amendment. E.J. Dionne, writing presciently in the Washington Post on June 24, wants a new campaign “protecting the rights of Americans who do not want to be anywhere near guns.” One wonders if he had dinner with Justice Kennedy a couple of weeks ago to trade notes?
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