Say Hello to the 'Identity Person' and Goodbye to Your Rights

The Supreme Court did more than fundamentally rewrite the Constitution in the case of Obergefell v. Hodges, they created an entity that doesn’t really exist. In a ruling largely devoid of actual legal reasoning, Justice Kennedy cobbled together his own sympathies, leftist social ideations, flowery rhetoric, pop culture and as Justice Scalia put it, the nonsense of a fortune cookie, to create a new entity that now shares constitutional rights with people -- identity. What is identity?  I have no idea, neither does Kennedy, or anybody else, and yet this constitutional thing now shares equal rights with the flesh and blood creatures our laws and institutions are meant to support and protect. And because “identity” is not a real organism, and not fully understood, it can spread without mercy or recourse, threatening to its host, just as surely as Ebola can bleed out a real human being.

There was never any serious doubt that the Court would force the states to sanction gay marriage, based on the obvious fact that four liberal justices favored it, and Kennedy, the Court’s swing vote, had already telegraphed his sympathies in matters concerning “gay rights.” What did surprise legal observers on both the left and right was how Kennedy chose to rationalize his decision. The obvious, less controversial route would have been to find that state laws prohibiting gay marriage violated equal protection under the 14th Amendment. 

But to do that, Kennedy would have had to find that gay Americans were a protected class of people, and here he hit a logical roadblock. How can “gay” people be a protected class? Protected classes historically are readily identifiable people, based on race, or sex, or disability, or national origins. These are categories that are generally susceptible to some kind of objective proof, e.g., genetics, genitalia, birth certificate, physical impairment. 

Homosexuality is not so easy. We have been told for a long time now that homosexuality is an innate orientation that most gay people don’t consciously control. I accept that. But we also know that this is not true in all cases, and also that many self-described homosexuals also engage in heterosexual activity, and vice versa. We also know that some people (homo or hetero) never engage in any sexual activity -- that their “sexual orientation” is an essentially an unrequited urge, or no urge at all. Indeed, sexuality is basically about urges or lack thereof. Most people have sexual urges toward the opposite sex, some have it towards their own sex, some have it toward both sexes, some don’t have urges, and some have urges that encompass inanimate objects, animals, children, ad infinitum. 

The logical and legal problem for Justice Kennedy was that an urge is not a person. You can’t create a protected class for an urge, even if you called that urge “sexual orientation.”  

Faced with a seemingly intractable problem, Kennedy “solved” it by creating a new legal notion called “identity.”  Kennedy understood “identity” could not be a protected class either, so instead he chose to make a person’s identity a “liberty.” Neat trick, huh? In a work of legal reasoning and scholarship straight out of the fortune cookie school, Kennedy turned an inchoate physical urge into a person’s identity, and then found (not in the wording of the Constitution) that a person’s right to choose an identity is a fundamental liberty under the 14th Amendment. 

This bit of legal legerdemain will be a fount of endless mischief, so much so that it could prove to be single most devastating insult to the Constitution the Republic has yet endured. Even legal scholars on the left can see the potential for abuse. Writing in the Washington Post, Jonathan Turley, while cheering the legalization of gay marriage, correctly sees in Kennedy’s promotion of identity as a dignified “liberty” as dangerous to other fundamental liberties like free speech. If your identity and dignity is offended by my speech, that is now a violation of your liberties, which can neutralize my rights under the 1st Amendment.

Same with any other enumerated right, but most especially religion. It is no accident that religious freedom has been the first casualty of the gay rights movement, but the reason is not what the left would have us believe -- that intolerant religious people are being justifiably punished for violating the rights of gay people.

The concept of marriage is inextricably tied to religion. The first known marriage in ancient Mesopotamia was part of a religious rite. All civilizations (until relatively recently) tied marriage to religion, with the possible exception of Chinese civilization, which substituted Confucianism for religious dogma. And Confucianism is if anything, more patriarchal and limiting than most religious beliefs. Thus “gay rights” and religious rights (and rites) share the same space, and there likely isn’t room enough for both if Justice Kennedy’s ruling stands. 

Being gay, in a legal and logical sense, is closer to being Christian than it is to being say black or Asian. It is not about a physically identifiable trait, it is about a gay person’s belief in their own identity, and their urges (both physical and emotional.) In the same way, devoutly religious people base their identities on their beliefs and emotional/moral/religious urges. The same psychologists that tell us “gayness” is innate say the same thing about religiosity for most people.   

It would have made more sense for Kennedy, determined as he was to vindicate gay marriage, to have analogized “gay rights” to religious belief. Under such a rationale gays could seek constitutional protection for their beliefs the same as any other confessional group, on an equal footing. But as Kennedy did it, they now have more rights than members of American confessional groups, as we are seeing in the legal clashes between gays and some Christians.     

No court could force a Christian church to conduct a Muslim wedding, or vice versa. Both religions stand on an equal footing before the law, so promoting one religion over the other would be a clear violation of the Constitution. But according to the Court, being gay is not a belief, it is an “identity,” expression of which is a “liberty” under the constitution. In “identity” Justice Kennedy created a constitutionally protected kind of person, impossible to either define, or effectively limit. The clash between gays and religious people is a fight between mere beliefs (ephemeral) and “identity people” (that is people with chosen identities -- which is really just belief but never mind.) Beliefs can’t win against “identity people” with rights (which are really only beliefs masquerading as rights.) People always win over beliefs. 

For now, “identity people” are gay people. But this is a wobbly legal construction that can and will get out of hand. “Identity people” will not only trump rights, but other previously identifiable protected classes. If a white woman in Washington State has a black identity, shouldn’t that liberty be dignified with same privileges as any other member of that protected class? Same with Caitlyn Jenner, who regardless of his genitals is now an “identity woman.” Indeed, this decision is on its face a greater victory for so-called transgendered people than gays, never mind polygamists, and cat people. So claim your identity now, because your rights as a non-identity person are not likely to last.