Professor Gerard Bradley of Notre Dame Law School has some feelings on the whole same-sex marriage thing. Notre Dame is a Catholic institution so it’s not surprising there might be some faculty with reservations about marriage equality. But Professor Bradley eschews the more sterile, “academic” arguments about religious freedom to engage in all kinds of disdainful and derisive asides blowing well past the line of civil discourse.

[UPDATE 6/5/18: The Notre Dame LGBT Law Forum has released a statement in response to Professor Bradley’s article. Read the statement here]

He opens his complaint, titled “Learning to Live with Same-Sex Marriage?“, by recounting one of the final exam questions he gave his constitutional law students, asking them to read a passage from Justice Kennedy’s Obergefell opinion and ask them if those words make: “coherent sense. Why or why not?”

What is it with law professors writing exam questions about restricting civil rights these days? On the heels of Texas Law asking students to explain why Brown v. Board should be overturned, Professor Bradley decided to publicly post his (decidedly tamer, but still…) “hold my beer” moment. At least Professor Bradley offered the students the option to answer “yes” to the question — a courtesy the Texas students didn’t have — though one has to suspect risk-averse law students knew which answer their professor was looking for.

But this foray into his terrible exam writing skills was just a prelude to the bile to come when Professor Bradley turned his thoughts toward the Masterpiece Cake case:

The facts and arguments in that case make it nearly a perfect vehicle for establishing that the First Amendment does justify some limits on making everyone bow to the same-sex marriage idol.

These sorts of snide side comments will be a theme of his piece, so buckle in. In a lot of ways, this is what makes it so much more offensive than Cletus on the street railing about the evils of the Queer Eye reboot. The persistent chug-a-lug of the bigotry steam engine just putting out sly aside after sly aside trying to keep just below the shock level of most people makes this discourse so much more insidious. And from someone placing the imprimatur of a constitutional law expert on it would make it laughable if it weren’t so gross.

But kudos to Professor Bradley for elevating homosexuality to one of the Commandments — something it, literally, is not.

The problem with Masterpiece Cake, as Bradley sees it, is that the ruling will be so narrow since it will only cover those who produce arguably artistic speech, thereby excluding sincerely close-minded bartenders and caterers:

(at least so long as they do not invent a specifically lesbian Margarita or a “gay” swordfish platter)

Wow. First of all, every Margarita is kind of gay, which is a compliment. Second of all, where does this guy come up with this imagery? Is there a handbook somewhere? Because we should let that one go out of print.

Ultimately, Bradley’s big beef is that the Supreme Court may have blessed the ceremony allowing same-sex couples to get married, but failed to answer the burning question — in his mind — of living with marriage equality going forward:

We can more or less effectively steer clear of same-sex nuptials, no matter what the law is. But all of us have to face—and will face for the rest of our days—the challenge of what to do about the two married guys who apply to live in your co-op, or who want you to take their family portrait, or who will soon join your school’s PTA, or who will eventually come to you for marital counselling. Same-sex weddings are the stuff of save-the-date and a precise GPS location. Same-sex marriage is everywhere, all of the time. One cannot hide from it.

Those are daunting challenges. Let’s answer them: (1) let them live in your co-op just as you would anyone else; (2) go ahead and let them take your portrait; (3) welcome them to the PTA because they’re parents who care about the school; and, (4) will they? I’m not sold that same-sex couples will all “eventually” come to Professor Bradley’s Happy Funtime Gay Conversion Camp.

The parallels between the legal challenges facing the LGBTQ community and the black community in the aftermath of legalized segregation are clichéd because they’re true, but for the sake of showing our work, which of these “challenges” weren’t asked with equal vitriol about black people in the 1960s? That this can be lost on a constitutional law professor is deeply troubling.

Of course, people have had to live with irregular sexual relationships since the dawn of time.

Irregular, eh?

But legalized same-sex marriage is different, and worse, than anything that has plagued societies before. For one thing, such relationships are about as far distant from real marriage as any relationship could be.

I’d have thought the forced concubinage of children was worse, but he’s the expert.

Second, recognizing the sexual consortium of two men or two women as a marriage settles conclusively that marriage as such is sterile.

Roughly one in eight couples are infertile. We let them be married without condemning the fertile half of the relationship to hell.

But it’s Bradley’s kicker that lays bare the dumb cruelty of his worldview. He worries about marriage equality… for the kids:

So far considered, then, placement with a same-sex “married” couple is a grave moral hazard to the child. If and when the child finally is exposed to the truth about marriage and sexual morality, he is much more likely to reject it, for accepting it would involve repudiating the relationship of those who have cared for him and loved him for years, if not decades. The child is then placed in the awful position of having to choose between filial devotion and adherence to the truth. It is a cruel choice—one that no child should be forced to make.

Note that the “truth” here is not the tangible years of love and nurturing a child might receive that would make them feel a sense of affection for their parents, rather the “truth” is strict adherence to a health code prepared by nomadic shepherds thousands of years ago. A health code that also bans eating pork, but I’m guessing Bradley’s less concerned about that one because it’s put him in the awful position of having to choose between bacon and adherence to the truth.

This is what gives me pause whenever rumors circulate about Justice Kennedy’s looming retirement. He clearly relishes his legacy as the author of the Court’s landmark gay rights cases, and yet he’s got to be savvy enough to know that his legacy will be relegated to the trash heap of history if he jumps ship right now and offers the Heritage Foundation the last vote they need to reverse course on everything he’s helped achieve. There’s a fun thought experiment to be had about a world where, say, Pryor replaces Kennedy and marriage equality isn’t immediately thrown under the bus, but Professor Bradley’s sense of constitutional law isn’t far enough in the rearview mirror to take it seriously over the long term. Maybe, maybe, Justice Roberts provides a mealymouthed fifth vote in the first challenge, but not without taking pot shots at restricting the rights of same-sex couples. And if another vacancy were to open? Justice Kennedy’s legacy would morph instantly from hero to the guy who enabled the clawback of decades of advancement.

But it might allow Professor Bradley to finally draft some better exam questions, so it won’t be all bad.

(Check out the Notre Dame LGBT Law Forum’s response on the next page…)

Learning to Live with Same-Sex Marriage? [Public Discourse]

Earlier: This Is One Of The Dumbest Law School Exams Ever… But At Least It’s Also Racist

A Mild Defense Of The Dumbest Law School Question Ever

Will He Stay Or Will He Go? On Justice Anthony M. Kennedy’s Rumored Retirement From The Supreme Court

4 Reasons Why Gay Marriage Is Safe, Even After Justice Kennedy Retires

Joe Patrice is an editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.