Soon I will be publishing an essay on what I believe to be substantive if not technical breach of the Establishment Clause on June 26th. We have witnessed the collapse of government as an arbiter for a pluralist and liberal democracy and its reconstruction as an explicit advocate for various struggles, a process long in the making and reaching its apex on that day.
For now, a critique of the various responses to the ruling from different sectors.
1. The jubilant masses and their corporate benefactors
Not much to see here, but worthy of a mention if only to distinguish them from people making serious efforts to rationalize the ruling. They couldn’t care less. They don’t know about the Constitution (masses) or care about it (corporations). All they know is that they won, they’re happy, and they will never let us forget about it. At least they make themselves easy enough to identify.
2. The Constitutionally misinformed
The most common refrain I hear from people defending the ruling is that the court was correct because “government” can’t deny benefits it gives to one group to another group.
This argument is quite obviously false. In fact, the very case I based my hope in Anthony Kennedy on affirmed it. There he argued that the voting public did have the right to confer non-essential benefits and privileges on different groups, or to take them away once established. In that case he was talking about the privileges and benefits of Affirmative Action, which were originally enacted to bring about “fairness” and “equality” but which had, to the voters, now become a burden.
The 10th amendment is very clear: whatever powers are not prohibited to the states by the Constitution, are held by the states and the people. The Constitution says nothing about marriage; the power to determine what marriage is belongs to the states. In many states, elected legislatures decided to recognize same-sex marriages, and no one on the right insisted that they lacked the authority to do so. This is because we respect the Constitution and the rule of law, even when it leads to outcomes with which we disagree.
Ah, but this is about the 14th amendment, you say in response. But there are two reasons why this fails.
First, because marriage laws always applied equally to all. No one could marry someone of the same-sex, regardless of their desire to do so; anyone could marry someone of the opposite sex. There was no “sexual orientation” litmus test, nor could there be, as the entire concept of fixed “sexual orientations” comparable to race or gender is highly questionable to say the least. We are not even sure as a society what it means to “be gay”, whether it is caused by genetics, environment, or in what combination – or whether it is an absolutely permanent condition for all, or a fluctuating condition for some.
Ruling it out as a mere choice, which I do along with most others, does not mean that it is a hard and fixed category either, and yet we now craft legislation based on this very assumption. At the same time, the very lines between “man” and “woman” are being breached, so that we cannot even assert with confidence that there exist, as separate entities, men and women. We must be certain that there are definitely heterosexuals and homosexuals for the purposes of marriage law, and we must doubt the very existence of men and women for the purposes of transgender inclusion. This philosophical anarchy has now culminated in judicial anarchy as well.
Secondly because, just like Affirmative Action quotas, what constitutes a legal marriage is not essential, it is not fundamental. I would have very much preferred that we altered our legal language to reflect this fact by replacing the word “marriage” with “civil union.” The legal aspect of marriage should have had a different name than the institution of marriage itself, which consists of so much more than legalities. This was a semantic and philosophical mistake. But that mistake does not alter the reality: that what legal marriage actually is, which is a bundle of contracts and tax breaks, no one is entitled to. The contracts can be established independently of a marriage license (or bundled together under a civil union) and no group is singled out for exclusion from tax breaks.
This would have allowed us to preserve the integrity of the word “marriage”, which is all we really want in the end, while allowing everyone to partake in the most important benefits of marriage. In the meantime we could have worked on altering the language we use to express these ideas. Instead, we got this.
3. The opportunists
I have already seen libertarians speaking about the implications of the decision for gun rights, and who knows what they will come up with next. “See, this will help us on other issues!” Even if that turned out to be true, it would never be sufficient to balance the damage done by this ruling.
Others are satisfied that we may “move on to other, more important issues.” Myopic fools!
What is coming down the road for people who adhere to the natural law – mostly religious people – is a wave of persecution. Those who deny it are blind. I will be elaborating more on it in the future. But all one needs to do is look to other countries in which “gay marriage” has been legalized for some time. Those who think the 1st amendment will forever remain a bulwark against the sort of thought-policing that occurs in Canada or Europe, or on our own college campuses, are over-confident. The 1st amendment is all but openly despised by the forces that worked so hard to bring us the ruling of June 26th. They have come this far; they will go further.
Even if it takes many years to formally alter the 1st amendment or abolish it, between now and that time this movement will do everything in its power to make the substantive use of that right a living nightmare for us. Jobs will be lost, reputations ruined, children indoctrinated against the will of their parents, churches faced with increasingly complex and costly legal battles, businesses sued and harassed, much of which we have already seen and will continue to see more of.
While all of this occurs, our fair-weathered secular comrades in the libertarian movement will rationalize their indifference by pointing to the formal existence of individual rights right up until the precise moment when the progressive world-spirit effects a qualitative transformation into full-blown totalitarianism. At that point I envision them becoming the progressive caricature of the sort of “love it or leave it” rednecks they have mocked for years.
4. The defeatists
None of this means we are utterly defeated. Despair is a natural reaction, and I felt it myself. But think of the pro-life movement in the aftermath of Roe. The left has never been able to savor that victory; rather it turned to ashes in their mouths because of the resistance put up by the movement. To this day it considers the pro-life movement a major thorn in its side and an impediment to its social objectives. So must the pro-marriage movement become.
We have always been engaged in a war of attrition. But sooner or later, the unstoppable Wehrmacht finds its Stalingrad. In keeping with that analogy, we, my friends, are now partisans, and we will live the life of partisans and dissidents. I suggest we start looking for allies.