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06/29/2015

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Andrew C.

This was a very interesting post.

Here is a curiosity:

Each of the "highest ideals" which Kennedy explicitly mentions seems to fit-along-side of, if not directly belong to, the category of virtues Hume calls the Virtues of Benevolence.

In contrast, Kennedy does not explicitly mention any ideal that so clearly fits-along-side of what Hume calls the Virtues of Greatness of Mind. This category of virtue includes magnanimity as well as “courage, intrepidity, ambition, [and] love of glory” (T 3.3.2.13).

I don't want to read too much into this. Kennedy's quote appears in a context in which the virtues of benevolence are more relevant than the virtues of greatness of mind, so the fact that Kennedy only explicitly alludes to the former is, perhaps, not surprising. Still: interesting.

Michael Kremer

I have two comments on this. The first is that in your opening sentences I think you misread Kennedy. I don't think he is saying: "love, fidelity, devotion, sacrifice, and family" are "the highest ideals."

I think he is saying "love, fidelity, devotion, sacrifice, and family" are ideals, they can be held in higher and lower forms, and in marriage they are taken (at least as ideals) in the highest forms.

The second comment concerns the question why he thinks marriage is the most profound union. It is related to the first. I think to understand him here we have to remember that Kennedy (like the dissenters Roberts, Alito, and Scalia – and like me) is a Roman Catholic. His argument, I think, is, fundamentally a Catholic one (whether you think that is a good thing or a bad thing is another matter). It depends on holding onto one aspect of traditional Catholic teaching about marriage (while separating this from other aspects of course!) -- that it is, at least in ideal, an irrevocable commitment, extending into the indefinite future, to one particular other, "until death do us part." Catholicism has held on to this teaching in a very strong form, with its refusal to recognize civil divorce and insistence on annulment (declaration that no previous valid marriage existed) prior to any subsequent marriage. But one can see marriage as embodying an ideal of the possibility of such a commitment without holding that every marital union is permanently indissoluble. It is a question of the meaning of entering into such acts, the value one places on the possibility of such a commitment.

I think for someone like Kennedy, the idea of marriage is inseparable from the idea of a voluntary choice to bind oneself to one other human being, "for better, for worse, for richer, for poorer, in sickness and in health." For many people there is something about this that is an ideal, which is why images of people who have lived such a commitment for decades finally being able to solemnize that commitment in a societally recognized ritual move so many. It is this commitment that is the reason why marriage was used as the image of the relationship between Christ and the Church (and before that between God and the Jewish people).

This, I think, is why marriage, for Kennedy, embodies the particular ideals Kennedy mentions in a "high" (or, some might prefer to say, "extreme") form, and why it is "the most profound union." Philosophical friendships, fire-brigades, platoons of soldiers, dance-companies, and surgical teams are not formed through a ritualized performative speech act in which a commitment is undertaken that is understood as binding and unconditional, as marriage is undertaken. This act is an act of avowing adherence to the ideals that Kennedy describes. It is not just (or even!) that the ideals are realized in any actual marriage. It is that the very act of entering into marriage is an explicit act of submitting to those ideals as ideals. At least, I suggest, something like this is what was in Kennedy's mind.

Michael Kremer

I forgot to mention Thomas in my list of Catholic dissenters from the decision -- and of course Sotomayor is Catholic as well.

Eric Schliesser

Dear Michael,
Thank you for your illuminating comments (I am especially grateful for the second to last full paragraph). However, I am inclined to think that some of the unions I point to also involve *binding and unconditional* commitments with ritualized performative speech acts (e.g., platoons of soldiers) or even oaths (medical types).

George Gale

I find Michael Kremer's comment totally à propos. One thing to add: for Catholics marriage is a) a sacrament; and 2) performed *by* the couple, not by the priest. As MK notes, it's a performative.

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