It's worse than you think
Keith invited my comments on the Obergefell decision today over at his fine post on King v. Burwell (RTWT, as they say). Because my take on this SSM decision will be too long to comfortably fit in a comment, tho -- it'll have to be in this new post. But as I said, read Keith's post too.
As indicated in the title, my take on the Supreme Court decision regarding SSM is that it is worse, far worse, than you might be lead to believe from the media reports. All you need to know about the majority holding is contained in its first sentence:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity*.
The holding then invokes the previously-tried much-reviled doctrine of "substantive due process", by which those fundamental rights as identified by the "reasoned judgment" of the courts as "so fundamental that the State must accord them its respect" are protected by the Fourteenth Amendment -- i.e., protected by the imposition of state laws that impinge on those rights. This approach of "substantive due process" was used in Dred Scott (which C.J. Roberts reminds us was "overruled on the battlefields of the Civil War"), and in the reviled, overruled, and now (by this case) resurrected Lochner case. But history doesn't slow down Justice Kennedy --- not when his "reasoned judgment" can rewrite it by claiming that the Framers intended this result:
The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.
Like Hell they did.
Anyhoo, then the obvious bootstrapping of same-sex marriage into such a fundamental right then occurs, and voila: same-sex marriage is a fundamental right that must be granted by each state, and honored across state lines. End of analysis.
All of the four dissents are strong, and do not shy from pointing out the damage that is done by the majority opinion. All citizens should read all four of them. Roberts points out Dred Scott and Lochner, and the evils those cases inflicted, as noted above. Scalia rightfully rails against the "naked judicial claim to ... super-legislative power, a claim fundamentally at odds with our system of government". Justice Thomas gives a lesson on the meaning of liberty, with this lead-in:
[T]he majority invokes our Constitution in the name of a "liberty" that the Framers would not have recognized, to the detriment of the liberty they sought to protect. Along the way, it rejects the idea -- captured in our Declaration of Independence -- that human dignity is innate and suggests instead that it comes from the Government. This distortion of our Constituion not only ignores the text, it inverts the relationship between the individual and the state in our Republic.
And Justice Alito wraps up the larger effect at the end of his dissent:
If a bare majority of Justices can invent a new right and impose that right on the rest of the country, the only real limit on what future majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate....
... I do not doubt that my colleagues in the majority sincerely see in the Constitution a vision of liberty that happens to coincide with their own. But this sincerity is cause for concern, not comfort. What it evidences is the deep and perhaps irremediable corruption of our legal culture's conception of constitutional interpretation.
Yeah, it's that bad.
Keith makes the point that the states make "cohabitation licenses" available to all comers, without discrimination, and that whatever the rest of us want to call it is up to us. That might have been a response had the Supreme Court applied "equal protection" analysis -- but it most certainly is not a valid response given this decision. We now have Supreme Court law that says that marriage is a fundamental right that must be granted by the state to any pair (for now) of humans (for now) who want it. Discrimination has nothing to do with it -- marriage itself, as defined by the Court today and by courts in the future, is itself a fundamental right because of the dignity that it allegedly confers. So sorry, Keith, that ship has sailed.
And contrary to Flambeaux's point (while granting that this die may have been cast long ago -- but not as long ago as Justice Kennedy says), this case will in fact cause incalculable damage beyond its specific holding today. Just like Roe v. Wade, much of the populace will interpret this "right" to same-sex marriage as a public good -- "gee, if the state can't prevent me from getting (an abortion; married to another guy), it must be a good thing for me to do." This case is worse than Roe, though, because at least in Roe the Court allowed room for some limitations, regulations, etc. in its out-of-the-blue trimester analysis. There's no such room here -- this one is carved in stone totally, and completely.
Of course, this was the goal of the gay political agenda all along -- to require the Nation to agree that gay is just as good as hetero, and that it is immoral to think, much less say, otherwise. You especially can't say otherwise in this current age of bigotry witch hunts, in which one evil racist nut acts out his own bigotry, meaning of course good-bye to Lake Calhoun.
Legally, we'll now be in the realm of clashing rights: same-sex marriage vs. religious freedom. One would think that the judge-invented SSM right would lose to the express First Amendment free exercise right, but all you have to do is look at the abortion counseling cases to see how that often doesn't matter.
Courage and action (not BOp "strategic retreat") will be required in this new age. A price will be exacted for one's convictions. Parochial schools and universities may well have to do without federal and state funding. Murray Option actions will be required. And states and communities that want to resist may well have to suffer the inevitable corporate embargos.
Freedom is not free.
* Any in the class have any ideas as to what current hot topic might fall within "defining and expressing their identity"? Bueller?
Wait a minute! as little as 14 mos ago, y'all were telling me that Rod Dreher invented the spectre of gay "terrorism" to explain the suppressed sales of his Ruthie book! and that gays didn't get the CEO of Mozilla fired, instead the CEO and dreher were just making stuff up because they wanted attention (or something)! NOW you're telling us how dangerous the "gay political agenda" is and that it's "worse than we think"? LOL! you guys really do crack me up. http://contrapauli.blogspot.com/2014/04/could-gay-terrorists-be-suppressing.html
ReplyDeleteThe only thing more insane that Rod Dreher's obsession with himself is the obsession of Pauli, Keith, and others here with Dreher. I'm glad you recognize that, Kathleen.
DeleteI agree it's worse than we think, but I can barely think today. The insanity of this decision is staggering.
ReplyDelete"You have to right to an identity... If you cannot afford one, one will be provided for you at no cost to you."
I'm trying to be optimistic as usual, but my wife is about to give birth to our seventh child and he will be born into this utter chaos.
Regardless, Pik, the court's decision today with respect to marriage is limited solely to marriage dispensed by and recognized by the State. Period. If it were anything other than that, today's decision would arrogate under its purview anything in the universe anyone might randomly choose to slap the name marriage on. But the Supreme Court cannot redefine sacred marriage anymore than it can rewrite the Catholic catechism. What lies between these points are very strong currents of suggestion and social intimidation precisely of the sort Dreher is reveling in and exploiting and which more than a few Christians and conservatives will likely succumb to.
ReplyDeleteWhat the court has irrevocably done today is forever sever marriage from its historical, biological and traditional roots between one man and one woman, without, however, replacing that concrete anchor with anything else. In this post-man/woman context the number "two", "a couple" now becomes completely abstract and arbitrary. Polygamy, for example, was made illegal particularly in reference to the one man/one woman historical standard. So, to cut to the chase, today the court has set itself up for having to deal with marriage as a reductio ad absurdum: it's no longer biologically rooted, and it has no other logically binding limits. All that's needed to render the decision today explicitly ridiculous and nihilistic is someones willing to press their now-existing rights as three men to claim marriage and marital benefits.
Until that future circus, state agencies are not required to issue marriage licenses at all (though if they do, they can't discriminate), may recognize sacred marriages, and must recognize marriages validated in other states. That's it. If and when it gets to the point of courts trying to tell religions what they can and cannot do with respect to their sacred marriages, now you're in racking AR-15s and shooting people in protest territory. And, except for the Drehers of the world and those like him, it will never come to that.
Of course, I can hardly prevent Christian conservatives from turning into Rod Drehers. The problem exposed today isn't really the court or SSM, it's the wholesale fecklessness of those who don't see saying NO as an option
You are right that this decision has no limiting principle that is not abstract and arbitrary. But it still has a limiting principle: namely whatever the justices say is a marriage is a marriage. So the limiting principle is whether you can convince particular judges at a particular time and particular place.
DeleteOf course, a government calling something sacred does not make it sacred. And as you say, it will all depend on the resistance that is put up.
And while I agree that the court's decision is limited solely to marriage dispensed by and recognized by the State, it is no small point that each State must grant marriage licenses under this decision. As I said, this was not an equal protection analysis -- marriage (including same-sex) is now a fundamental right that must be granted when demanded. On that basis, I don't see how there can be any state opt-out of the marriage business.
No, Pik, whatever the justices say is a marriage isn't a marriage, only that whatever a State entity offers as a marriage license must be available to any combination of genders - that's all the scope the court has, period. There is no judicial power that reaches beyond that. Nor is it the case that a state must grant marriage licenses under this decision - not if it doesn't grant marriage licenses at all. It only must grant equal recognition to any marriages it does recognize within its own borders (and it must recognize any marriages validly sanctioned by other states) - for example, sacred marriages, but not, of course, secular marriages it does not offer. Any gay marriage sacralized by any church within its jurisdiction must of course be recognized alongside any non-gay sacred marriage, but, again, that's the extent of it. Whether any state as a practical matter is willing to inconvenience its citizens to that extent is of course a practical political question, but that only - not a judicial one, or, at least, not an enforceable judicial one (or, of course, explain how martial or other enforcement might proceed).
DeleteBut let's revisit my reductio again. Why must three gay men test the new limits? None at all. Obergefell doesn't mandate that marriages be defined by sexual orientation or interest, only that same genders cannot be prohibited. So three conservative male attorneys walk up to a JP's window and demand a marriage license, then sue when one is not forthcoming. On what grounds does the government defend itself? Number of individuals entering into marriage? That has now been undefined. Nor is three men polygamy, by definition. Force that hand enough and Obergefell immediately begins to unravel.
Let's keep in mind that, must as the power of suggestion may suggest otherwise, the courts simply cannot create law ex nihilo; they can only operate (parasitically, if we want to think of it that way) with respect to legislation or regulations promulgated under legislation. Delimit or remove that legislative host they operate upon, and they simply have no traction.
DeleteWell, we'll agree to disagree about the ultimate result on State must vs. State opt-out (the question will never arise anyway, IMO).
DeleteSo let's go to the unraveling part. What came to mind for me is not so much polyamory but group bigamy: Wife #1 who is married to Husband #1 might not herself want to married to Wife #2 but would rather be married to Husband #2 (who Husband #1 doesn't want to marry) who at the time is married to Wife #3 . . . .you get the picture. Who's to say, when the rationale for deciding is this:
The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.
Let the fun begin.
It won't be ex nihilo. All states have marriage laws today. The Court only has to declare the repealing legislation unconstitutional for lacking a rational basis (i.e., due to animus). Romer v. Evans IOW, they'll find something.
DeleteIt won't be ex nihilo. All states have marriage laws today. The Court only has to declare the repealing legislation unconstitutional for lacking a rational basis (i.e., due to animus). Romer v. Evans IOW, they'll find something.
DeleteWell, that was actually my point: that the court(s) must operate on existing law. But if a state repealed any legislation putting the state itself in the business of licensing marriage, the court can hardly create new legislation mandating they do, only, now Obergefell, that a) they recognize valid marriages from other states (why?) and b) treat any recognition of marriage within their own state equally regardless of gender.
One thing we haven't yet seen is anything remotely resembling serious pushback against either social or corporate entities by Christian conservatives. There has been opportunity, first with respect to Mozilla in the Brendan Eich case and then with respect to Apple in the Memories Pizza incident.
ReplyDeleteIt's pretty simple: Christian conservatives are going to have to stop bring potato salads to knife fights and start bringing something that hurts a lot worse than a knife. And start throwing the Drehers over the palisades in the process.
Honestly, Keith, I don't know where you get the gall to write this stuff, after dismissing Dreher for getting hysterical about the Eich case. http://contrapauli.blogspot.com/2014/04/could-gay-terrorists-be-suppressing.html
DeleteAnd yet it's STILL TODAY whose fault is it that conservatives aren't hardcore enough? Dreher's, of course! not to mention, YOU were one of the conservatives berating those who were trying to tell you this was a knife fight. My 4th grader is more consistent in her arguments than you are. That is not hyperbole. You're so bad at this, you make Dreher look good.
As I was saying:
ReplyDeleteWhich is why the gay-marriage movement wants to make Obergefell less like Roe and more like Brown v. Board of Education. As Anderson explains, the movement intends to cast supporters of traditional marriage once and for all as bigots who won’t be allowed to make their case in the public square. They want to salt the earth post-Obergefell and make certain it’s impossible for any traditional marriage movement to flower.
And this is exactly what Obergefell gave them -- not an interest-balancing between state and impacted class such as under equal protection analysis, but a fundamental right as newly designed under substantive due process. Assimilation is and always has been the goal:
“2-4-6-8, smash the church and smash the state,” people shouted.
I think Jonathan Last's whole piece is one with pillow-biting Dreherism in general: "All those gays are meanies and don't play fair!"; to which I reply, "Yes, you're right, would you prefer some lube, or some brass knuckles?"
DeleteAcross society today there is and implicit whininess Grand Canyon deep, no doubt a function of moving further from the now-closed frontier and toward the knee-hugging, rocking, thumb-sucking nowhere of cyberspace.
I say, when you see someone falling, help them out: give them a push. In the wake of Obergefell, instead of conservatives wailing that polyamory is next, make it happen: make the Obergefell decision - the 21st Century end state of State civil benefits-distributing marriage - own and ultimately eat itself.
Well, you can call it Dreherism* and dismiss it if you want, I guess, but my point was that the difference between a Brown-like decision (which we got) and a Roe-like decision is significant, and played into the larger dimension of what the overall agenda is after -- it isn't about marriage, it is about thought. At least thought in the sense of what can be acted on or even said in polite company.
DeleteEnding state-civil-benefits will not only not be permitted to happen, state-civil-benefits were cited in the Obergefell decision itself as part of the now-fundamental right (and will then considered to be mandatory). Lest any state try to remove those so-called benefits in the wake of Obergefell, they'll just cite Romer and invalidate it as promulgated by "animus".
But worse yet would be the amplified damage to civilization that would result from further separating the religious aspect of marriage from the civil. It'll be a form of BOp in which only those who are already in the fold will go through the two-wedding process, rather than as a culturally traditional process where, for example, even the weak in faith learn the importance of the bond and may gain some strength in carrying out the commitment. The general understanding in our society that marriage is a commitment before God, and more than getting a fishing license or recording a deed, is taken for granted, but it should not be discounted. Our society and civilization will suffer deeply from further separation of the church from marriage, and we should not encourage that separation.
*I've intentionally left references to Dreher out of my comments on this case. I have no interest whatsoever in what he has to say on it, because as we have seen, all roads lead to the Dreher BOp whatever it isn't. (There's no "is" to it.)
Not to mention that if the faithful retreat to do what they already have and should be doing (but with new BOp branding), namely teaching their children and maintaining their faith, the actual agenda that I noted will take further hold and further destroy civilization.
And in contrast to both the BOp and the scorched-earth approach you mention, what will be required is resistance, preaching, and practicing what one preaches, all with hope, faith, and above all love (as our priest reminded us in his homily this weekend). It matters to civilization that we faithful exist and with a public presence. I don't know what form that resistance needs to take, as that will be dictated by circumstances, but we should pray for the courage required, as there will be consequences to be suffered as a result.
Pik, one of the hallmarks of pillow-biting Dreherism is bemoaning events which have not yet happened, that is, it's a form of eager anticipation cloaked as concern, hence his smirking "Law of Merited Impossibility" and "I told you so, bunnies". Essentially, his whole BO campaign is evidence that Dreher has been concern trolling Christian conservatives this whole time.
DeleteAll that has occurred so far is that gays have been given nationwide rights to the same civil gateway to marital benefits straights now have. Period.
The future remains the future. Buck up.
Keith, "Dreherism" is abhorrent to me because it is sort of a pessimism and sometimes actual despair along with a lot of short selling in order to capitalize professionally on the misery.
DeleteBut I'm with Pik here. The state has always had a natural interest in marriage just like it has an interest in the availability of food and water to citizens. But now it has taken over marriage and said basically "Don't you DARE tell us what marriage is. You didn't build that. We did, we own it, we decide how it works, and we will tell your children what to think about it."
I think that we are sufficiently bucked up with regard to this, and spoiling for the fights to come. But there will be fights, and they will be nasty.
Pauli, unless the 5 Justices writing the majority opinion in Obergefell now constitute "the State" that is the federally United States of America, you might want to parse your claims more discriminatingly, lest you become victim of that which you claim to abhor.
DeleteI think your description of Dreherism is spot on, and, if I actually need to say it, I'm not trying to apologize for gays getting access to civil marriage. What I am trying to do is to demarcate the limits of what actually did happen (gays given a gateway to civil marital benefits), what actually did not but which Dreherists might want to suggest did for their own self-serving reasons (Christians in exile, buy his book), and to point out the problems inherent when a dog does manage to sink his teeth into the rear tire of a moving car (marriage now formally/legally undefined.
Those 5 Justices wrote a judicial opinion. Everything beyond that is up to others, first and foremost the citizens of the U.S. themselves in determining what will be the case and what will not.
To date, liberals and gay activists have acted while conservatives have moped and snarked and blogged in response; here's the latest example of some typical brutal conservative response (reading the comments, one understands why they proudly call themselves Morons).
I'll leave it to you and your wife to decide how much you actually intend to let "Don't you DARE tell us what marriage is. You didn't build that. We did, we own it, we decide how it works, and we will tell your children what to think about it." apply to your family. In the U.S., it really still is all up to you.
Rand Paul is already floating a response at the federal level to SCOTUS' having undefined marriage in order to equalize marital benefits: pulling the State out of the marital benefit business entirely. It's predictably tepid for someone running for president, but it usefully highlights the point that, if you're agreeable to having the State as your investment partner in marriage and marital benefits, don't be surprised when it takes 51+% and control for itself.
DeleteLet me just point out finally that inequality of material public benefits was the nose that ultimately put the whole camel into the tent. Had there not been public benefits distributed to married people but not to others, maybe some Unitarians or Episcopalians might have held gay weddings to give gays "dignity", but the entirely of historical human experience would never have come to be upended at the Supreme Court level. What leverage could have otherwise existed to enable such a thing? Nothing that I can think of, not even liberal power-dreaming.
DeleteSo, I don't know whether the route that admitted the camel into the tent will be the one through which he also exits - I'm more confident in the history of positive feedback destroying unstable systems myself - but it's a thought. Get the State out of the now-fused together benefits/dignity-granting business altogether.