He spoke for approximately 40 minutes. But it was about two-thirds of the way in, when he began to discuss the first amendment, that he said something, and said it in a way, that I found particularly interesting. By means of a "law school" hypothetical, the justice asked his audience to pretend first that "you are a government official, bound by the Constitution... You'll be a judge, a federal judge." Next, he told the audience, "assume this... you may not like it... but assume that you as a personal matter strongly reject:
the idea of ethical relativism, moral relativism. That's the philosophical school which says (and here the justice's voice elevated a few octaves and turned sing-song-y, as though he were trying to mimic a new-age guru) that all ideas are of equal value, you have a right to think what you want, all books are the same, all music is the same... the philosophy that one person cannot insist on the correctness of his or her views; the philosophy that there are no absolutes in art, architecture, literature, aesthetics, beauty, religion, the fact that you can and must tell your kids what's a good book and not a bad book.
"Now how can you be a judge and enforce the first amendment," Justice Kennedy asked, "If this is your personal philosophy?" He then said:
The first amendment says all rights are protected. All movies are protected. All music is protected. Aren't you a hypocrite? And if as a judge you are enforcing some mandate that is contrary to your conscience and your ethics maybe you should resign. How can you do this? There's an answer. The Constitution controls only the government. The first amendment says it's not for the government to say that this book is good and this book is bad, it's not for the government to say that this movie is good and this movie is bad. It's doesn't follow that the public cannot say so....
And here the hypothetical seemed to end. And here Justice Kennedy seemed to be making his own point: "A nation that's in the grips of moral relativism, as a private philosophic matter, cannot protect basic values," he said, before offering an example about a group of students he met last summer who later went to Europe and then returned to "give little reports on what they had done." As the justice recounted, a young woman said to him: "'And I elected to go to Auschwitz and it was very important.'
"'Why was it important?' Justice Kennedy said he asked the student. And she said: "That's where Schindler's List was filmed.': Justice Kennedy then said:
Well, I had this sinking feeling that even with the crime of the enormity of the Holocaust, or of the Stalin massacres, that we are reluctant to condemn.... A strong society, a happy society, a society with a civic consensus, must make judgments on what's good, bad, beautiful, ugly, right, wrong. That's not just your right as a citizen. In my submission it's your responsibility.
(An aside: If I were there that night, and I got to ask a follow up, I would ask the justice to explain why he thinks Americans "are reluctant to condemn" when there is so much evidence around of us daily condemnations of just about every facet of life. Condemnations on television, on radio, on the Internet, in newspapers, at political rallies, in music. Who exactly, I would ask the justice, is not making judgments on "what's good, bad, beautiful, ugly, right, wrong"?)