There is some controversy over the Islamic term taqiyya, generally understood as a principle of self-preservation permitting Muslims to deceive infidels when the numbers are against them without incurring divine penalties for dishonesty. Some Muslims complain that the concept has been inflated to feed the fears of terrorized Westerners. Raymond Ibrahim, a scholar of Islam, puts it in psychological terms: “Anyone who truly believes that no less an authority than God justifies and, through his prophet’s example, sometimes even encourages deception, will not experience any ethical qualms or dilemmas about lying. . . . Deception becomes second nature.”
Somewhere between her bat mitzvah and her Senate confirmation hearings, Elena Kagan, a nice Jewish girl from the Upper West Side, must have browsed the works of the 14th-century Islamic scholar Ibn al-Munir: “War is deceit,” he wrote, “and the most complete and perfect war waged by a holy warrior is a war of deception, not confrontation, due to the latter’s inherent danger and the fact that one can attain victory through treachery.” How else to explain how she went from her 2009 declaration — “There is no federal constitutional right to same-sex marriage,” words she put in writing and revisited to assure senators that that was in fact her view — to precisely the opposite position — discovering a national fundamental right to same-sex marriage lurking about the Constitution — in only a few years?
Nothing changed about the Constitution during that time. Nothing in federal law changed to support such a claim. In truth, the Supreme Court is not engaged in jurisprudence but in politics, that politics is an art, and that art is, as Andy Warhol insisted, what you can get away with.
The ground was rather different in 2009, when Kagan was being vetted by the Senate. Back in those ancient, primitive days, the great constitutional scholar Barack Obama had not yet divined the constitutional right to gay marriage enshrined in our national charter in 1787 or 1868 or whatever date Anthony Kennedy chooses to pull out of his penumbra. The issue bedeviled that other great constitutional scholar, Hillary Rodham Clinton, who through at least 2003 was on the record as a supporter of the Defense of Marriage Act, a federal exclusion of same-sex marriages, who by 2013 had moved left to Dick Cheney’s view that it was a question for the states, and who came around to the view that there is a constitutional right to same-sex marriage only a few weeks before the Supreme Court ruled on that question. We are expected to believe that Elena Kagan, sometime between her appointment as solicitor general of these United States and her elevation to the Supreme Court, whoopsied her way into something she’d missed in Con Law 101 and ruled in such a way that her views are not merely radically different from those she described to the Senate but in fact precisely the opposite of those views.
This isn’t a case of “growing in office.” This is taqiyya. Which is to say, it is willful deception by progressives when the numbers are against them and something they hold holy is at stake.
We have, needless to say, been here before, on gay marriage as well as on other issues. In 2003, California assemblyman John Longville, a Democrat from the blasted and recently bankrupt precincts of San Bernardino, used the magic words “Nobody Is Talking About.” “Nobody is talking about gay marriage — except the people who are trying to wave it around as a straw-man issue.” How long did that deception last? California voters, who know a bad performance when they see one, did not take Longville at his word, and so they passed Proposition 8, which ensured that while nobody was talking about gay marriage nobody was enacting gay marriage. By 2010, just a few election cycles after Longville’s flat declaration that the issue was a red herring, gay marriage was imposed on California by a judge. Nobody was talking about gay marriage, until it was the law of the land.
But of course people were talking about gay marriage in California in 2003. They were talking about it around the country, and well before that. They were talking about it, just as they have been talking about that other thing that nobody is talking about before or after the Obergefell decision mandating the recognition of same-sex marriage nationally and categorically — polygamy — which in fact was talked about during the Obergefell deliberations. The linkage of the two is of long standing: In 1972, a meeting of gay-rights groups gathering under the heading of the National Coalition of Gay Organizations called for the “repeal of all legislative provisions that restrict the sex or number of persons entering into a marriage unit,” according to Gay Marriage: For Better or for Worse? a 2006 Oxford University Press book by Yale’s William N. Eskridge and attorney Darren R. Spedale. (I give the full credentials here because it has been suggested by some commentators that the 1972 gay-rights manifesto is a fiction created by Christian fundamentalists; Eskridge is a respected scholar, and Spedale, a well-known entrepreneur, is a gay-marriage activist, among his other endeavors.) Nobody’s been talking about polygamy in the context of gay marriage and other nontraditional marriage models for at least 40 years. Nobody has been busy.
We all know better, of course. Even before that 1972 manifesto, the Supreme Court had considered, if only for the briefest moment, the question of gay marriage, in the matter of Baker v. Nelson, a Minnesota case in which the plaintiffs alleged that the state law restricting marriage licenses to two parties of opposite sex was unconstitutional. The Court gave that argument the back of its hand: “The appeal is dismissed for want of a substantial federal question.” And that was that, until it wasn’t: “Baker v. Nelson must be and now is overruled,” Justice Kennedy wrote in Obergefell, with Elena Kagan joining the opinion in spite of its being based on a federal constitutional right that she had positively affirmed did not exist. The only thing of substance that changed in the intervening years — the only thing that took us from “want of a substantial federal question” to national mandate — is that the ground became more favorable for the social revolutionaries. And while bearing in mind that we should always heed Abraham Lincoln’s advice and engage our political rivals with as much charity as we can muster, we would be doing ourselves and our republic a disservice if we failed to understand the role that deception — dishonesty with malice aforethought — plays in this process.
It is worth dwelling on that for a moment. Kagan was not, as some apologists have suggested, merely describing to the Senate the current state of play regarding the Constitution and gay marriage when she forswore a federal right to gay marriage. In a letter to Senator Arlen Specter, Kagan made it clear that she meant what she said, that she intended her answer to “bear its natural meaning.” As Matt Vespa notes, when 18 of her Harvard colleagues had signed on to an amicus brief insisting that the Massachusetts state constitution (of 1780) contains within it a mandate for same-sex marriage, Kagan declined to join them. She kept right on telling conservatives and uncourageous progressives such as Mrs. Clinton and President Obama exactly what they wanted to hear, until she had the one thing that the would-be social revolutionaries of 1972 did not have — power.
Chief Justice John Roberts energetically argued that practically every point in Justice Kennedy’s argument fits well into an argument for polygamy, that his arguments “would apply with equal force to the claim of a fundamental right to plural marriage.” And polygamy, unlike gay marriage, has a history in Western civilization, and in the United States. “If the majority is willing to take the big leap,” Roberts wrote, “it is hard to see how it can say no to the shorter one.”
But we are not talking about that. Why? Because nobody is talking about that.
The gay-marriage debate showcases two of the great progressive strategies for achieving social change. One, already touched on above, is the cynical “How Dare You!” That is an accompaniment to “Nobody Is Talking About.” Nobody is talking about polygamy, and how dare you compare gay marriage to polygamy! Nobody is talking about lowering the age of consent to 13, and how dare you compare the campaign for gay marriage to the campaign for lowering the age of consent! Etc. Of course people are talking about those things, and of course there are apt comparisons to be made. The fact that those comparisons are apt is the reason, in the progressive view, they must not be made.
William Saletan, writing in Slate, attempts to shoo away Roberts’s polygamy logic, and if he waved his hands any more vigorously, he’d fly off like a hummingbird. The No. 1 issue, he argues, is immutability, i.e., the belief that homosexual people are born homosexual, that sexuality is static in the way race (give or take a Spokane NAACP boss) and sex (give or take an Olympian or a gender-fluid Ruby Rose) are static, and that laws that distinguish between heterosexual and homosexual affairs are therefore morally identical to laws that distinguish between blacks and whites.
Immutability is an interesting question, and there is some quite persuasive biological evidence that certain homosexuals are in fact congenitally inclined toward same-sex attraction. There is also good evidence that the same is true of pedophilia, criminality, the taste for sexual violence, etc. The fringes of the gay-rights movement have dipped more than a toe into the question of pedophilia (and, more commonly, ephebophilia) over the years, so it is not quite the case that nobody is talking about that. But here the “How Dare You!” is handier, and necessary to deploy, because it is necessary that the question not be considered. If the argument is that discrimination against people based on Justice Kennedy’s immutability is inherently unjust — and, further, unconstitutional — then we must consider whether that applies to all immutable characteristics, or only to some, and, if only to some, to which and why. Saletan straightfacedly proclaims that there is no immutable tendency toward polyamory. About that: We 21st-century humans have approximately twice as many female ancestors as male ancestors (Damian Labuda et al., “Response to Lohmueller et al.,” American Journal of Human Genetics, October 2010), so — you do the math. That humans and other primates are not in the natural world strictly monogamous and that males have a preference for relatively more variety than do females are about as well-established facts of biology as there are — facts much better established than the simplistic theory of homosexuality that plainly is guiding Justice Kennedy.
“I do think the dissent by Roberts provides a legal foothold for people seeking polyamorous marriage rights.” So New York attorney Diana Adams tells U.S. News and World Report. Adams “specializes in nontraditional family law,” according to the newspaper. “If there’s going to be a rejection of some of the traditional man-woman elements of marriage . . . those same arguments could easily be applied to three- or four-person unions.”
But — be assured — nobody is talking about harems. Well, maybe that Ibn al-Munir fellow.
‘Nobody Is Talking About” is the big rhetorical part. The big political part is the compromise that is not a compromise — taqiyya moderation.
In the case of gay marriage, that originally meant a general, good-natured social tolerance that appealed to the best in Americans and our live-and-let-live tradition, even if that tradition is honored more in principle than in fact. Then there were civil partnerships, which were fashionable for about five minutes, during which time nobody was talking about gay marriage. And then we started talking about gay marriage.
Conservatives are a complicated bunch. We try to deal with reality, including the unpleasant bits of it, and so we often find ourselves subject to ideas and priorities that are in conflict. The traditionalists among us may see homosexual marriage as a fundamental fraud, believing that marriage is about codifying relationships that are categorically reproductive if not always actually reproductive. The libertarians among us may nod to the conservatives but ask whether it is properly the role of the state to set those rules rather than letting society evolve spontaneously. The federalists — blessed are the peacemakers! — are great compromise-brokers, especially when they are running for president, and they say, along with Hillary Rodham Clinton until a few weeks ago, that it is a question for the states, that the Constitution is silent on the matter, that the federal apparatus is too clumsy a tool, that a hundred flowers, or at least 50 of them (or 57 for those who studied geography with Professor Obama), should bloom. For the progressives, that is the political version of the breakfast buffet at a $79-a-night hotel: There’s not much that’s appetizing, but there is bacon in there somewhere. The gay-marriage bacon was in the federalist position: Legalize state by state, relying on judicial power when defeated in the democratic arena, with the hopes of forcing a federal resolution of interstate variation.
But there are other models of taqiyya compromise. We just went through a very stupid fight about the display of the Confederate flag at a Confederate monument in South Carolina. How did the flag end up at the monument? It used to fly over the capitol dome itself, thanks to Fritz Hollings and the rest of the peckerwood segregationist Democrats who ran South Carolina back in the 1960s. Nobody was talking about getting rid of the Confederate flag entirely — madness! The local NAACP chapter argued that flying it over the capitol dome itself sent a very different sort of message from flying it over, say, a Confederate monument. They petitioned to have the flag moved “to a place of historical rather than sovereign context.” The NAACP was absolutely in the right, and reasonable, intelligent people appreciated that, which is how the flag ended up where it is. Around the same time, the NAACP in Mississippi was involved in a similar dispute, and affirmed: “There is no desire on the NAACP’s part to go through the South tearing down Confederate monuments.”
Nobody is talking about that.
We could do this all day with any number of subjects: Nobody is talking about forcing churches to perform same-sex weddings, and there already is serious talk of revoking the nonprofit status of churches that decline to perform same-sex marriages in the United States; as Roberts noted in his Obergefell dissent, a Jewish college already has been penalized for failing to provide the same housing for homosexual couples that it does for heterosexual couples, and a Catholic adoption agency was forced to shut down when it declined to place children with homosexual couples. “Nobody is talking about forcing you to change plans,” Barack Obama once said. “Nobody is talking about banning all contact with lobbyists,” says a Capitol Hill moderate, while a MoveOn.Org petition demands an “executive order to make lobbying illegal.” Nobody is talking about banning homeschooling, except the people who are talking about banning homeschooling. Nobody is talking about gutting the First Amendment so that incumbents can control the terms of political debate, but the Democrats have been working steadily to do it. Nobody is talking about putting people in jail for having the wrong opinion on global warming — and how dare you compare that to Soviet reeducation camps? No doubt a taqiyya is on offer on one or more of these issues, perhaps in the form of another John McCain dog-and-pony show.
As the Israelis know, if you are going to negotiate with Hamas, Hezbollah, or the plutonium-addicted ayatollahs in Tehran, you have to go in with your eyes open — if you negotiate at all, and there’s a good case against doing so. The problem with “We don’t negotiate with terrorists” is that it is a difficult principle to apply to domestic politics.