Justice Kennedy and Confucianism

Last week Justice Anthony Kennedy wrote the majority opinion for the landmark Obergefell v. Hodges case, making same-sex marriage a right nationwide. It was an eloquently written opinion that has moved many by its piercing insight. However, there's a small detail that some people might have missed...

While explaining the history of marriage, Kennedy decided to cite the influential Chinese philosopher, Confucius:

The centrality of marriage to the human condition makes it unsurprising that the institution has existed for millennia and across civilizations. Since the dawn of history, marriage has transformed strangers into relatives, binding families and societies together. Confucius taught that marriage lies at the foundation of government. 2 Li Chi: Book of Rites 266 (C. Chai & W. Chai eds., J. Legge transl. 1967).

It's a small detail, but it's kind of a big deal.

The United States Supreme Court has traditionally been a staunch opponent of international theory. It doesn't help that there's also a strident political opposition to using foreign norms in American law.

The last four nominees to the Supreme Court were pressured by senators with questions regarding whether they would look to international sources when considering domestic constitutional obligations. Even Elena Kagan and Sonia Sotamayor, the most liberal of the justices, both toed the line and explained that international law has no place in the interpretation of our constitution. Kagan said our "Constitution is our own. It's... the text that we have been handed down from generation to generation..." In 2010, seventy percent of Oklahoma's voters backed an amendment to the state constitution instructing judges of the state to not "look at the legal precepts of other nations or cultures."

Obviously there's a difference between referencing Confucian teachings on marriage and citing foreign materials in the course of deciding constitutional cases. But for some on the court, like Justice Antonin Scalia, even using philosophy from other cultures is reprobate:

But you are talking about using foreign law to determine the content of American constitutional law -- to be sure that we're on the right track, that we have the same moral and legal framework as the rest of the world. But we don't have the same moral and legal framework as the rest of the world, and never have.

Justice Samuel Alito has echoed this sentiment, claiming to the Senate Judiciary Committee, "We have our own traditions. We have our own precedents. And we should look to that in interpreting our Constitution."

Ultimately, what's so interesting about Kennedy's reference to Confucius is that Kennedy is acknowledging how multicultural the United States is. It's no longer appropriate to use the single prism of Western philosophy to represent the history of civilization. In the 21st century, Confucius has just as much relevance to the average American as Cicero.

And who knows, maybe it's a small sign that the Supreme Court might be more open to international laws and philosophy.