What Was Lost

ConstitutionToday’s ruling in Obergefell v. Hodges represents the culmination of a perfectly executed public-relations campaign.

It is impossible not to be impressed by what this activist-driven effort accomplished—I mean in real terms, not the unserious victory slogans of the campaign itself.

In no particular order, it:

1. Successfully and fundamentally transformed the definition of “marriage,” and did so in a way that portrayed efforts to preserve traditional marriage as the novelty, rather than as the millennia-old status quo.

2. Successfully convinced a critical mass of the public that there is only one side in this debate, despite the fact that the side claiming the monopoly had only existed in any meaningful form for perhaps 20 years.

3. Successfully convinced a critical mass of the public that race and sexual orientation are directly analogous.

4. Successfully convinced a critical mass of the public (and jurists) that there is no possible argument against gay marriage—to the point where federal judges found that not permitting same-sex marriage is definitionally irrational, and had prominent left-leaning outlets calling the dissents simply “crazy.”

5. Successfully branded opponents as simple “bigots” for daring to hold a different view on a live political issue, going so far as to take punitive action against those who did not adopt the “correct” viewpoint.

6. Successfully portrayed the battle as, literally, love versus hate.

7. Successfully accomplished all of the above in about a decade.

My God, the magnitude of it is staggering.

Agree or disagree with the result, the sheer, total dominance with which their opposition was dealt defeat after defeat, constantly being depicted as evil and intellectually bankrupt—even when most of the public was still in favor of traditional marriage—is incredible.

How did this happen?

Briefly: Narcissism by those terrified of being on the dreaded “wrong side of history,” a relentless emphasis on effective emotional appeals and feelings as a basis for law, and a tireless media that was the movement’s greatest ally framing the debate in terms favorable to the non-traditional side.

It’s that last feature that is particularly fascinating.

The great failure of the modern media is its inability to distinguish for its audience between ideological arguments and judicial arguments.  Many rank-and-file journos don’t have the requisite skill or education to explain those distinctions.  Those who possess that ability are not particularly inclined to use it, because to do so would undermine the possibility that their preferred outcome would become reality (as it did today).

To most SSM advocates, the “how” didn’t matter.  They focus only on ends, not means.

But the means are what make our government special.

Suddenly, people (like me) who said, “You want gay marriage?  Fine.  Pass a law,” were seen by some as virtually indistinguishable from members of Fred Phelps’ extended family.  Passing laws take time!  And what if some states don’t get on board?  Everyone must be made to agree, and now.

USFlagConservatives lost this fight because they could never control that conversation, at least not in the last ten years.  This dominance over the narrative was so total that even the outcome was framed in the wrong terms.

“Supreme Court legalizes gay marriage in all 50 states” is not what happened.  What happened was that the Court ruled that it is illegal (unconstitutional, in fact) for any state not to recognize same-sex marriages.  That comparison matters a great deal when viewed from the perspective of constitutional law.

That lack of precision is typical, and it speaks to why so many Americans don’t grasp the difference between a legislative debate and an argument before the Court.  For them, all that matters is their preferred outcome.  If they like outcome X, then the Court should find a way to mandate X.  End of discussion.

When you discuss this matter with your pro-SSM friends, and you point out that the Constitution doesn’t contemplate a right to gay marriage, their response was likely something along the lines of “but it shouldn’t matter whom you love” or “gay people care and love and feel affection that is just as valid as straight couples” or “everyone should have the ability to get married.”

These are all arguments that would be entirely appropriate on the floor of a legislature, or in an op/ed, or in a debate between gubernatorial candidates.

They are also not legal arguments.

That contrast is crucially important.  It has been blurred into oblivion, thanks in large part to the unwitting or unwilling media.

And that is one reason why conservatives lost.

With the populace already accepting the lion’s share of the narrative, the turning point was when activists and media allies convinced much of the public that the questions “Should gay marriage be legal?” and “Is there a right to gay marriage in the Constitution?” were the same question.

They are not.

When I explain to people that I would never burn an American flag, but I understand that the Constitution precludes a law banning same, they usually grasp the dichotomy.  When I transport the analogy to abortion, and explain that someone can be pro-choice but admit that Roe is horribly reasoned caselaw (as several of my liberal law professors did, privately), I start to get confused looks in return.

When I say that someone can be indifferent to gay marriage—or even favor it—but think that there is absolutely no substantive constitutional right to gay marriage, it is at that moment that the pitchforks and torches tend to show up.

But why does that distinction matter so much?  Why is it so critical to understand the division between legislative / ideological preferences and the role of the judiciary in interpreting the Constitution?

My position has always been that our nation’s paramount value is not liberty or opportunity or capitalism or hard work or even freedom.  All of those obviously matter, but I don’t see them as the one value above all.

The value is self-determination.

We decide for ourselves what sort of society we want.

Not the clergy.  Not the aristocracy.  Not the King of England.

We do.

If we don’t like the laws our elected officials give us, we kick them out of office by voting for people who promise different laws.  It’s a terrific system, in fact!

There are a few limitations, to be sure.  And rightly so.  Those limits are the ones enshrined in our Constitution, and I can point to language in the document that addresses each.  We cannot validly pass a law that, say, outlaws Catholicism.  We cannot validly pass a law that requires government review of newspaper articles before they go to press.  We cannot validly pass a law that says only men can vote.

That last one is interesting, because it naturally relates to the 19th Amendment.  Mathematicians among you will note that the 19th Amendment guaranteeing women’s suffrage was passed after the 14th Amendment, which included the Equal Protection Clause.

Curious, then, that the 19th Amendment was even necessary, no?

That necessity emanated from the fact that the understanding of constitutional law was quite different then.  Today?  If you think passing simple legislation is too hard, just think of how tough it is to ratify amendments!

And, so, we “discover” new rights now.  Today’s ruling did so, and it was even more remarkable than other, similar cases: Its heavy reliance on factors like loneliness and dignity in legal decisionmaking was profound.  Again, these are fine legislative arguments, but those concepts are not referenced in the Constitution.  Neither is marriage, for that matter.  At all.

Until very recently, domestic relations law was seen as the bailiwick of the states.  Although that rule is still paid lip service by the Court today, it pales—and fails—in comparison to the supremacy of elite sensibilities that dictate what government is compelled to do to confer “dignity” upon its citizens.

With each decision like the one the Court announced today, we chip away a bit at a core element of our national, governmental, and jurisprudential identity.

A nick here, and a cut there, and, before you know it, we’ve bled to death.

Because what we lose when enough of these decisions accumulate is nothing short of true self-governance: The kind of self-governance that the people or legislatures of states like Vermont, New York, Washington, Maine, and Minnesota used to legalize same-sex marriage.

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45 Responses to What Was Lost

  1. HC68 says:

    The two most important factors in the disaster of this decision, and others as well, are the media, as noted by the article, and the Republican Party. This last is only just now starting to get the attention it’s deserved for years.

    Fundamentally, the higher ranks of the GOP are in near-total alignment with the Democrats and liberals on social issues of all sorts. They don’t _really_ oppose abortion, and never have. They couldn’t care less about gay marriage. They favor open-borders immigration just as much as the Dems do, though for slightly different reasons. They pretend otherwise at election time, because they know their actual Wall Street agenda is unpopular, but when the chips are down, they govern, or want to, in partnership with the liberals.

    Which is not to say that every Republican politician is like that. But large swaths are, the leadership runs that way. The real reason the Dems keep getting everything they want from the courts is that the GOP doesn’t _want_ to fight them, doesn’t _want_ to make the case to the public why the rulings are wrong.

    So the pressure has no counter.

    The GOP wondered this last year why they couldn’t get their voters to reject Trump. The reason is that their voters have lost all faith and credit in the GOP leadership. Whatever bad they could point out about Trump (and some of it is real), they could not claim to be any better with credibility.

    In this specific case, they privately welcomed the ruling because they thought, “Now we can talk about something else other than this embarrassing SoCon stuff,:” more or less. That’s why Jeb, who at the time was seen as the GOP front-runner, accepted the decision and tried to say we need to move on.

    Hello, President Trump.

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  5. old44 says:

    In that photograph of the White House in rainbow colours the Republicans have a great campaign poster for the next election.

  6. old44 says:

    Watch the novelty wear off at the first divorce and splitting of assets.

    • Gary says:

      It’s already wearing off. This ruling has stripped them of their victim status. So, it’s off in search of the next group of poor, oppressed souls. Who will it be? People living within earshot of church bells? How about people offended by the sight of Catholic school uniforms? They’re getting pretty close to the bottom of the barrel. Pent-up anger of normal people is quickly turning to pent-up rage. What comes after that?

  7. Thoughtful, well written, and appreciated. I’ve nearly been in a state of depression at these decisions. Both are nothing short of an evisceration of the Constitution, regardless of who “won”.

  8. JR Salazar says:

    Good piece. Our nation, however, is growing up with this ruling. Welcome to 2015.

  9. JimB says:

    A word from an old, retired lawyer. We are no longer a nation of laws; the SCOTUS decisions on Obamacare (both of them) were execrable, so also the gay marriage decision. A continuation of the New Deal court. Mr Justice Douglas explained the departures from established ConLaw by commenting, “Do you want a program or not?”.

    Precedent has now been set: Pass a law with a penalty attached (a “tax”) and you can require ANY action you can think of; Declare any statutory provision ambiguous (whether it is or not) and rewrite the law to your liking. This is rule of law?

  10. 4TimesAYear says:

    Reblogged this on 4timesayear's Blog.

  11. Pingback: Supreme Court Ruling on Gay Marriage Marks Profound Cultural Shift « US Opinion and Commentary

  12. paulashley says:

    “…the turning point was when activists and media allies convinced much of the public that the questions “Should gay marriage be legal?” and “Is there a right to gay marriage in the Constitution?” were the same question. …They are not.”

    An even earlier turning point can be seen in the Left’s takeover of our public schools. I am appalled at the level of ignorance of our young people concerning how our system of government is supposed to operate, and more importantly, why. Our schools have not merely been derelict in the duty to educate but actively involved in mis-educating our children.

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  14. Gary says:

    Does anyone recall the huge public demonstrations against same-sex marriage that took place in France a few months ago? The motivation driving those demonstrations both surprised and enlightened me. The crowds opposed same-sex marriage because it encouraged trafficking in children. So, in addition to perverting traditional marriage and changing the definition of certain words (husband, wife) and all of the other unintended consequences, we can add real live human victims. In a responsible society these helpless little ones would be protected. Despite all the blather about who is allowed to love whom, this is not a victimless development.

    • Hmmm... says:

      How does it encourage trafficking of children?

      • Bob says:

        This is a matter of the infamous slippery slope! Thirty or so years ago most people said homosexuality was aberrant. Slowly over the years and one swishy step at a time the views have changed until it is now something constitutionally honorable! Now it is possible to marry anything you want including sheep. All you have to do is plant the suggestion and a few pro stories in the news media and hazzah you have your license and it is go for you and a critter or several wives etc. That’s the slippery slope. Well it seems as if the lovely gentlemen at NAMBLA have decided that it is now time to push their agenda. They say that pedophiles are born that way and like straight and gay they are now on equal terms, and are un-treatable!

      • Joseph William Perry says:

        “How does it encourage trafficking of children?”
        Think about it: Two persons of the same sex cannot procreate a child. So, if they want their “family” to include children, they will have to get children wherever they can.

        • old44 says:

          This law gives the the right to adopt from official agencies.

          • Gary says:

            And ain’t that just great? I guess when normal, moral people feel they have nothing left to lose the real battle will begin. The stupid, blood thirsty Left will just keep pushing until that day. I sense it’s getting close.

  15. Jeff Coley says:

    Putting all the emotion aside, “gay marriage” is simply one citizen who wants to designate his special best friend as his legal next of kin.

    My suggestion is that the states get out of the marriage business altogether, treat marriages as private contracts between the parties that need only ever come to court in the event of a contested divorce or child custody issue. “Illegal” marriages – bigamous, incestuous, polygamous, etc – would be treated as unenforceable contracts.

    Take away their victory by refusing to play the game.

    • Farmer Bob says:

      Oh no you don’t! This *is* exactly the radical “gay” agenda, to do away with marriage altogether.

      “To fight for same-sex marriage and its benefits, and then, once granted, redefine the institution of marriage completely, to demand the right to marry not as a way of adhering to society’s moral codes but rather to debunk a myth and radically alter an archaic institution…the most subversive action lesbian and gay men can undertake…is to transform the notion of ‘family’ entirely.” — (Michelangelo Signorile, “Bridal wave,” Out, Dec 1994)

      “Being queer is more than setting up house, sleeping with a person of the same gender, and seeking state approval for doing so…Being queer means pushing the parameters of sex, sexuality and family, and in the process transforming the very fabric of society.” — (Paula Ettelbrick, quoted in William B. Rubenstein, “Since When Is Marriage a Path to Liberation?” Lesbians, Gay Men, and the Law, (New York: The New Press, 1993), pp. 398, 400)

      How do you like *them* gerbils. An “archaic” institution is to be “transformed,” and as a matter of course, so are you.

  16. DC says:

    This is the best article I’ve read so far about the recent ruling. The Left and MSM have made an art form of vilifying and pigeonholing all who oppose their goal even if the basis for opposition is legally sound or unrelated to their core end goal. Progressives are taking advantage of a naive citizenry to pass laws which represent staggering losses of rights bestowed by our Constitution. Our feckless Justices even opine about the impact on our Democracy of many of their recent rulings; at the risk of sounding instructive we live in a Constitutional Republic your Honors, and your job is to abide by the Constitution, not sidestep it.

  17. 9393Tjei2 says:

    The actual decision made is basically whether or not states maintain an interest in controlling the institution of marriage. This “state interest” theory is the same theory used by the SC to allow for forced sterilizations of mentally challenged and ill.

    This ruling btw still stands.

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  19. PraiseHim says:

    It happened because it was God’s will.

  20. Good article. Indeed, we have lost so much. There is more coming.

  21. Mr. Garrett;
    A very good explanation of why what happened and why it happened.

    I find, however, that I must take exception to your “discover” section of your essay. The reason for my exception is the 9th Amendment. I feel the Bill of Rights are, in my humble opinion, “clarification amendments” in that they clearly and specifically clarify some of what the Constitution lays out. It is in no way an all-inclusive list of our various rights. Somewhere deep down in the bowels of the 9th Amendment it says everything not enumerated in the Constitution is reserved to the States or the People. This being said, and no mention of marriage being made in the Constitution, the subject of marriage defaults to the People because, at the point in history, the State’s were not involved with marriage and marriage licenses. Marriage was a civil affair. Some people chose to go to their Church for a religious wedding while other people chose not to.

    Since marriage was already a civil right before, during and after the writing and ratification of the Constitution, the Supreme Court had no jurisdiction to act on or hear this case. Since 36/37 Jurisdictions had already acted on this subject, it further confirms that this “faux issue” is subject to State Jurisdiction. Personally, marriage should revert back to a civil affair between two consenting adults and the State and Federal governments should not be involved at all. The only reason they are involved is to control people and make modest income from the sale of licenses.

    Just my $0.02 worth…your mileage may vary…thank you for time.

  22. twila841 says:

    States could issue a license, requiring a birth certificate & ID. The couple (or whatever) signs, State Office stamps it, records it and give the applicants the original. and VIOLA the marriage is legal. No ceremony, no officiating, no vows. Same as getting any license or permit.

    Clergy or any other official wouldn’t have to officiate a marriage they found uncomfortable, because there would be nothing to officiate to make the marriage legal other than getting the license and the State recording it.

    In fact, States might develop a system to do it online.

    If people want a ceremony that would be strictly a private affair. If it’s a religious ceremony, it would be between the people and their religious organization.

    A church, temple, mosque would not be involved in the legality of the marriage so whatever they do could be in accordance with their beliefs. The religious or hosting organization could contract with the florists, caterers, bakers, etc. rather than the business dealing directly with the customers.

  23. Reblogged this on Our Song and commented:
    and this is what is not understood. Texas responded today by saying that they don’t have to issue licenses. what is happening? Google Reichstag fire

  24. Re-blogged on socialparentsplace.

  25. jeff says:

    Vote them out is always the word. Excellent article.

  26. Huh, stumbled upon this and I think it is the most clear headed article on these two decisions that I have come across. I have been reading a lot of articles trying to understand the implications.

  27. Jason says:

    A friend of mine made the following comment. I know it’s flawed but I can’t articulate why. He said: “The 14th amendment or the Constitution overall doesn’t mention marriage, that is true. But the 14th requires equality, so IF you allow marriage as a govt, you cannot exclude.”
    A thoughtful opinion but flawed I suspect. It seems as if gays do (did) have the same right-footed marry one person of the opposite sex, which was set up that way to encourage two parent families with a mom and a dad etc.

  28. Oinia says:

    Tommy,
    The SCOTUS ruling on Obergefell v Hodges did none of the 8 things you listed. Five activist judges waving their magic pens did not conjure a cultural consensus on gay marriage. It’s sad to see someone who clearly derides the process of this decision totally misconstrue its implications. You’re underscoring the activists’ rhetorical fallacy of a judicially manufactured consensus.

  29. bimbo says:

    outstanding … and the pendulum always swings the other direction

  30. Rational Db8 says:

    Absolutely excellent article, Mr. Garrett – I’m passing it along to friends. Thank you so much for writing it! I’ve favored gay rights nearly as long as I can recall – decades now – and yet believe this Supreme Court ruling does massive damage to this wonderful experiment called the United States because it further chips away at the Constitution. Not to mention opening the door to huge problems with people’s rights to freedom of religion. Even there, I’m agnostic, yet I strongly support freedom of religion, because I support the Constitution and recognize how it helps protect all of us, even when it doesn’t happen to be our ox that’s being gored today.

    Unfortunately the Constitution has been so destroyed, starting probably with the 13th and 17th amendments, but far more so with the 1942 landmark case, Wickard v. Filburn, 317 U.S. 111, where basically the Supreme Court in a most twisted “logic” said essentially that farmers who grew products for their own family’s consumption could be taxed on those products, because ‘if they didn’t consume it themselves, it might be sold over the border and therefore the commerce clause applies and we can tax you on food you grow and eat yourself (or feed to your own animals)’ – or ‘if you hadn’t grown it, you might have bought products from across state lines,’ so again, that was used as justification to tax the product. Essentially that opened the door for massive abuse of the commerce clause – basically it’s been used to justify virtually anything that any member of Congress decides they want. It’s probably the most abused Constitutional clause in existence.

    But the speed with which the rule of law and the actual Constitution has been attacked and abrogated in the past few years is absolutely staggering.

    RIP USA, hello, banana republic. It’s a crying shame.

  31. Annette says:

    Tommy, I love reading everything you write!

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