Today’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.
Conservatives 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.
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.