It was not commented upon much, but recently our Supreme Court refused to stay the federal-district court order against Alabama’s marriage laws. Many say this is yet another sign that the “big one,” a ruling against any and all bans against gay marriage, may be expected by June. Originalism-inclined justices Alito and Roberts presumably see that they don’t have the votes to stop that decision, and so see no point in taking the various disputants in Alabama and elsewhere through any more legal wrangling than necessary.
By all journalistic logic, my headline here ought to be: “Signs Point towards Final Same-Sex Marriage Victory.” But I can’t keep my eyes from looking ahead towards two ironies: Diminished Democratic Say, and, A Mixed-Bag Victory for America’s Gays.
The Alabama news comes amid other indications of diminishing democratic say.
As I mentioned below, the Supreme Court of Canada recently ruled, in direct opposition to a 226 to 59 parliamentary vote in 2010, that euthanasia is the law of that land.
This November, Obama took an unconstitutional action to provide amnesty to millions of illegal immigrants, a policy consistently defeated in Congressional votes, and overwhelmingly opposed by public opinion. Democratic denunciation of this has been absent or muted, Republican funding resistance disorganized and confusing, and serious talk of retaliation for the sake of future Constitution-protection entirely absent.
Don’t even get me started on what continues to go on with the EU, which top political philosopher Pierre Manent described (in his dazzling Metamorphoses of the City) as follows:
What characterizes the European situation is that what we say as citizens has no importance whatsoever, since political actions will be decided in an indeterminate place. …if the process continues, we will soon leave behind the representative regime to return to a command without word. The command will no longer be that of the State, which at least occupied an elevated place, but that of the rule, the rule of indeterminate origin. One does not know where the rule comes from, only that one must obey it.
It all brings to mind a recent book much less heady than Manent’s, Democracy in Decline by James Allan. It warns us that popular democratic say is decreasing in a number of the older liberal democracies. Due to judicial usurpation, various sorts of international governance, and bureaucratic rule-setting, more and more basic decisions are being removed from democratic determination. I won’t be describing Allan’s book further here due a promise to review it elsewhere, but its main line of argument is one conservatives are going to have to increasingly consider in the times before us.
Now the big gay marriage victory being almost certainly just around the corner has prompted some, such as Rod Dreher, to proceed immediately into the worry about religious liberty. That concern is connected at the hip to the one about the New Political Correctness. These are appropriate worries. However, my view, despite my dismay at a new breed of liberals, or progressives, who openly try to decrease our religious and associational liberty, and my disgust at the lion’s share of our “ethical liberals” and moderates-so-called who do far too little to denounce or restrain them, is that saner heads will eventually prevail in this arena for the most part—the damage will be limited. America won’t abandon those liberties anytime soon. A Ross Douthat column from a year ago, “The Terms of Our Surrender” gives you some sense for why it won’t, while also admitting and sketching the darker possibility.
I’ve heard Peter Lawler say, with these dangers in mind, that we increasingly need to defend “conservative ends by strengthening libertarian means.” But what I want to argue here is that we just as much need to defend such ends by strengthening and talking-up democratic means.
As an academic, I’ve taught the lessons warning the kids about “tyranny of the majority”(Tocqueville) and “pure democracy”(Publius) countless times, and have marked hundreds of passages in the pages of Plutarch, Livy, Xenophon, etc., each mark pointing to a specific instance where “the many” blew it big-time. Ditto with my American history books. I even wrote a dissertation that delved into some of the most pessimistic insights Tocqueville and Plato had about democracy. So I know, and better than most, what the conservative case for skepticism about democracy consists of.
But the signs of the times convince me that we need to promote constitutionalism, not by contrasting it with democracy, but instead by talking it up in the name of what Joseph Bessette calls “deliberative democracy,” and also, in the name of democracy’s dignity. The fundamental dignity of democracy, as unforgettably described by Wilson Carey McWilliams, is that whether I choose to speak or not, my presence in the house of democratic deliberation is acknowledged. However the debate turns out, I am acknowledged to matter to it. As is the viewpoint of every citizen.
Now, yes, McWilliams did argue that only the small state can consistently provide this dignity, but note, when he so beautifully described democracy at its Aristotelian best, he did have his eye upon what a partial rejuvenation of American federalism and township-liberty might look like, and more ideally, upon what the spirit of democracy in every sort of polity is like whenever it is at its best. Blended with what the Publius-attuned Bessette has noted about how representative democracy actually functions when at its best, and with Manent’s increasing emphasis on Aristotle actually being a pro-democratic thinker, a powerful defense of a democratic regime moderated in various ways by prudence, but at the deepest level by a humble sense of fraternity, really is available.
Now consider this irony. In 1965, our Congress finally acted against the disenfranchisement of blacks in Alabama and other Southern states, as the film Selma recently reminded us. In 2006, Alabama adopted Amendment 774 which made it plain that its law prohibited gay marriage, and it did so with final approval by popular referendum. At the time, support for that amendment was 81%–only 19% of Alabamans were open to the idea of gay marriage. A 2012 poll found that a shift had occurred: 32% supported gay marriage. Perhaps that number is now about 35%, but since such a polling finding still wouldn’t tell us what portion of that 35% would approve not simply of gay marriage, but of its being enacted by judicial fiat, it seems best to estimate that around 30% of Alabamans today would support the district court action that overturned amendment 774. That means, then, that the wishes of 7 Alabama citizens out of 10 were ignored, and essentially dismissed as bigotry, by that action.
That is a sad thing and disgusting thing in and of itself. But here is the irony: how many of those ignored citizens are some of the very ones that the Civil Rights Movement fought to secure the vote for? Probably many thousands of elderly black Alabama voters are among that 70%, and were among that 81%. (A referendum is precisely the sort of moment in which the typical loyalty most blacks have to the Democratic Party can ban be set aside.) So, the trend of democratic dignity for that set of Alabama blacks who only became finally registered in the latter half of the 60s is now moving in the opposite direction, and not due to supposed Republican attacks upon the “1965” Voting Rights Act.
But how many on the pro-gay-marriage side care to look into the thoughts and feelings of the millions of their fellow citizens across the nation who are on the other side of this issue, whether they be black, white, or what have you? How many are willing to really peer into what their opponents feel, namely, that their arguments have been systematically dismissed, and that their votes on this issue, and on increasing numbers of others, are not allowed to count? Who cares for their dignity?
Or where is the sense of “commonality” that our president recently spoke of? Do those who oppose same-sex marriage think, “Now I and the liberals, I know we have deep disagreements, but hey, I know that they hear me out, and that at the end of the day, when the voting’s done, they will abide with my victories, just as they expect me to abide by theirs, with obvious violations of our Bill of Rights excepted? ” Or, do those blacks who largely vote D but nonetheless oppose SSM think the same thing, when we remove the word “liberals” from the sentence above, and replace it with the phrase “Democrat Party leaders”?
Of course not. Both the conservative Republicans of Alabama, and the Democratic opponents of SSM there, know that they are in the out crowd on this one. And if they have followed the national coverage of the gay marriage issue over the years, they know there has not, in the meaningful sense of the term, been a “debate” about it. A debate implies that both sides will denounce and disown those on their side who try to shut it down, through mob-like comment swarms, through propagandistic labels, etc. This has not happened. And of course, a democratic debate implies that we all listen to the debate, and then vote on the matter, with the outcome being respected, at least until the next vote on the same issue occurs. That has not happened either.
Many of them probably feel badly now about what homosexuals suffered when the social demand for closeted life still had a tight grip (which likely remains not much “loosened” in some Alabama counties to this day). They would admit that there was no debate then either, because so few could even dare to conceive of the debate. Perhaps they, and myself also, have things to repent of on that score—see Douthat. But two wrongs do not make a right, and in any case, they can see that with respect to the question at hand that they have no say.
And the same more or less goes, as their Senator Jeff Sessions eloquently reminds them, with the “issue” of illegal immigration. Why the scare quotes? Because again, it is apparent that there is no debate. At a certain point, those who had helped set up the “debates” decided, consciously or unconsciously, they would not let you have a say in the decision—from that point forward they were faking their belief in debate. Many, and on both sides, have long remain duped about this, but the “debates”—i.e., the media and internet content framed as such–are not, in fact, set up to aid the people’s decision. The rulers decide. Those who keep objecting once the decision is handed down? Those are extremists. Haters.
“Debates?” A debate is a “learning tool” that moves poll numbers in the right direction of history, so as to generate a trend of poll movement that will allow judge-rulers to act with less embarrassment.
Whatever your opinion on gay marriage, I hope you see that the means allowed to take the lead in achieving it turned out to be deeply destructive of the democratic dignity of the ordinary citizen, and poisonous to the only sense of commonality that a fairly pluralistic democratic society can hope to cultivate. The cause of marriage equality has unfortunately allowed itself to become closely yoked to two very corrosive trends currently at work in our liberal democracy: that of an anti-constitutional judicial supremacy that makes a mockery of democratic dignity, and that of a bullying and demonizing approach to democratic debate, enabled by certain internet dynamics, which deepens polarization and undermines first amendment rights of speech, religion, and association.
In an emotional sense, I suppose I’m ready for the Supreme Court to make gay marriage the law of the land. “Judicial reasoning,” is it? “Debate,” you say? “Federalism!” you cry? Enough of this charade. Do it, Democrat rulers. Command away. Let the contempt you have for those of us who disagree become etched upon judicial stone, and become the rock you try to rebuild your party’s shaky electoral prospects upon. And no, don’t try to tell me that it matters one iota that Justice Kennedy is not a Democrat really, but some kind of libertarian or—cough—“moderate.”
In a more prudent and Christian sense, however, I’m with Dreher in saying there’s “Nothing left to do but pray that Anthony Kennedy will be charitable towards religious liberty when imposing the terms of our defeat.” Whatever bizarre line of justification emerges that purports to require same-sex marriage’s availability due to the due process clause of the 14th, but not that of polyamory and polygamy, and hopefully not to require the silencing of those who continue to voice the idea that SSM is wrong, the character of that line of justification will be, you know, important. My biggest worry is that its logic will drive family law, and all its intersections with benefits, taxation, etc., in an entirely individualistic direction. So, may God’s hand guide it.
On to the other irony, the more significant one. Closely connected to the way this insults democratic dignity, is the way it turns out to be mixed-bag for the cause of gay dignity. Here I argue for a position that is not mine, since I am an opponent of gay marriage generally. It’s the position I think my smarter opponents ought to hold.
Public opinion has been trending towards the gay-marriage side in polling, and so had those trends held, SSM supporters could have simply waited about a decade (assuming some tandem restraint by the justices), with those in red states wanting to marry settling for other legal arrangements in the interim. They thus would have wound up with SSM approved of in probably 40 of the states by majority democratic vote. The bluer states could have added on top of this, super-majority approvals declaring it to be a constitutional right by amendment! And how long before the 10 hold-out populations, such as the Alabamians, would have caved? And could a national amendment have been approved?
We’ll never know.
To my mind, the most important point about gay marriage for gays was the way it could serve as a final stamp of public moral approval of gay sexuality. The big victory for gays occurred earlier, won against the social demand for closeting and persecution, a victory largely achieved by the mid-90s. Or at least that was the time-line in SoCal where I grew up. By that time, even among many religious conservatives like yours truly, there was widespread acceptance that That joke isn’t funny anymore…and that everything that went with the public shunning not so long ago taken for granted had to be rejected, even if differences about a number of legal matters remained. And by then, I think from anyone’s perspective, a return to the pre-Stonewall or pre-Milk days was unimaginable, whatever one’s judgment about the seriousness or extent of the remaining bullying and discrimination. So the 90s situation was one in which society at large had moved past the shocked rejection that authorized mistreatment, but was not at the point of bestowing basic approval. For gays, the remaining big prize was to gain a sign of that approval, not just from entertainment elites but from the public at large, and that would be the legalization of gay marriage.
The argument I’m making here by no means denies all that legal same-sex marriage meant and will mean, dignity-wise and practicality-wise, to the many gays who have married or wanted to, but it does explain why it has usually been so important even to those gays who have little interest in marrying, or even to the minority of them who regard marriage as a retrograde practice for gays or for society generally.
Thus, no victory for gays could have been more precious than their fellow citizens voting, directly or through their representatives, to allow same-sex marriage. And that victory did occur in a number of states, such as New York.
But now? Let’s assume the Court makes SSM the law of the land this year. On one hand, marriage equality will be “in the Constitution,” but on the other, its actual approval by a majority of citizens will not become unambiguously stated. The sincerity of public approval registered by polling will become the more open to doubt the more that coercion against the liberty to disapprove of SSM, within institutions public and private, is permitted to develop. And in some sense, the sincerity of that polled approval, despite the likelihood of its increase, will ever remain open to question now, regardless of how things develop judicially (and culturally) on the liberty of dissent front.
The liberal and “liberal-tarian” judge-rulers, as they did not regard themselves as really bound by a duty to obey the Constitution and thus to any particular course or pace of action on SSM, are more than any other group guilty of squandering this chance, admittedly an uncertain one, that American gays had for a far more unambiguous victory of public approval.
I know many will find this argument outrageously counter-intuitive, and hopelessly tainted anyhow considering its source. All I can say is that I offer it sincerely, and that I assume some sincere gays thought of it and voiced it long before.
Then there is the matter of the Constitution itself. For the gay person who takes things as the slogan-makers and the legacy media present them, getting marriage equality “into the Constitution” (or, getting it finally recognized to have always been there) is a great victory, and perhaps a good that ought to outweigh whatever dishonor to democratic say that occurs. But for the gay person who has any taste for judicial reasoning, her peeking into the actual reasoning upon which the likely decision is going to be made will not, actually, be able to give her a great deal of pride. The connection to the Constitution made in the thinking of Justice Kennedy is pretty strained.
Similarly, not much pride can be taken in the current confusing steam-rolling over the laws and constitutions of various states, where standing to defend their own laws is denied to states’ citizens, when, equally preposterously, their own officers refuse to defend them, and where no-one knows what the law is from day-to-day or from county-to-county, often accompanied by obvious legal errors and violations committed by the pro-SSM judges or officials in question—Byron York provided the details on the comedy-of-errors legal mess that has occurred in Alabama this month. None of this, beyond the stories of the particular couples suing for marriage rights, makes for an inspiring civil-rights-type saga.
So for these reasons, I say the Supreme Court’s finally requiring gay marriage nationwide is going to be a victory that feels a bit hollow to gays. Of course, lawyer-activists liberal and liberal-tarian will have more substantial reasons to celebrate yet another victory for their kind, as their eyes dart about for the next Project.
I fail to see how any of us have gained in dignity, or in better understanding of one another, by essentially ceding this decision to a specialized set of oligarchs. “Losers all!” is what I say. As we try to move forward to deal with whatever is next, allow me to suggest to one and all that real constitutionalism, and the dignifying room for democratic say that it constructs, is the better way.