Since our culture has embraced Justice Kennedy’s “mystery of life” philosophy, we lack a coherent framework for making laws that don’t just cater to personal preferences.
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.”