There’s been a great deal of hand-wringing and flag-waving over the Supreme Court decision affirming the right for all people to be married, regardless of sexual orientation. On the conservative right, it has been lamented as the end of civilization, the end of democracy, a legal apocalypse on the scale of Roe v. Wade. The more liberal left has viewed this as a great victory and another step in the onward march of progress. I think both characterizations are overwrought.
However, I want to focus on a couple of issues brought up in the dissent and the issue of same-sex marriage more generally.
1. The end of democracy: How many times have we heard it said, “Five unelected judges have decided…”. I am both mystified and compelled by this statement. One the one hand, it does seem as though 5 people have decided to “find” a new right in the Constitution that was not there previously. Considering that those 5 people cannot hope to represent all 320 million Americans, it is very undemocratic that they decided that same-sex couples have the right to marry when numerous states and elections have shown that there are large groups of people that do not believe in same-sex marriage. On the other hand, is the will of the people always paramount or absolutely right? How much better would we be if the Supreme Court had decided differently in the Dred Scott case, or Plessy v. Ferguson, even though public opinion largely supported them in those decisions? On a side note, our country is not a democracy, we are a federal republic. You elect a representative to act on your behalf. Those representatives (namely the President and the Senate) nominate and confirm appointees to the Supreme Court, so while the Supreme Court justices are technically unelected, they have to go through a rigorous process to be appointed, and they do have a tenuous link to “we the people”.
2. The “discovery” of a new right: According to both sides of the issue, SCOTUS found, discovered, or created a brand new right last week, the right to get married and that right cannot be interfered with by the government. On the face of it, this seems deeply troubling. What if SCOTUS discovers I suddenly have the right to have water, heat, and internet? Could I simply stop paying my bills and argue that I still have a right to received those services? We generally equate rights with freedom, in fact, Americans talk about rights all the time. I have a right to stand here, I have a right to do this, I have the right to not speak, or to speak loudly, etc., etc. Judging by all of our talk of rights, you might think that the discovery of new rights is a good thing! But, what about inalienable rights? Is SCOUTS discovering rights that have always been there, they’ve just been hidden? Or, are they truly creating new rights out of thin air? If that’s the case, then can our supposedly inalienable rights be taken away just as quickly as they were given to us? To be clear, I tend to think that all of our rights are mischaracterized. We have no rights as humans, we only have privileges granted to us by whatever government we are subject to.
3. The slippery slope: Same-sex marriage will lead to polygamous marriages. We should all be wary of a slippery slope argument as it tends (by definition) to be fallacious. However, related to the above paragraph, what is to stop the Court from discovering that I have a right to marry two women? Or the right to marry a man and a woman? And so on, ad infinitum. First, I don’t necessarily see the issue with drawing the line at marriage between 1 person and 1 other person. Second, why do we think polygamy is a bad thing? It is, after all, Biblically based. Third, can’t the religious freedom argument cut both ways? If you have a sincerely held religious belief that marriage is between 1 man and 1 woman, and I have a sincerely held religious belief that marriage is between 1 man and 10 women, then why should you be allowed to exercise your belief and I cannot exercise mine?
4. Marriage is for children: I cannot underestimate how often I have seen this in recent days, that marriage is primarily for child bearing and rearing. Marriage centered around the child makes sense since society in general has a vested interest both in reproducing and in ensuring that children are well cared for. However, I have two misgivings about this view. First, does this mean that we should exclude from marriage people who either cannot or will not reproduce? If you are elderly, or have some congenital defect that prevents reproduction, does that mean that we should prohibit your marriage? What if you want to reproduce before you get married and then find out your partner is unable to have children? Is it your societal responsibility to divorce that person and then marry again? There seems to be some stigma attached to young couples who choose to not procreate. Conservatives connect Roe v Wade with this decision here and say that SCOTUS is only concerned with sexual pleasure without consequences. We hate children and young people don’t want them because they would interfere with our pleasure, sexual and social. Thank you for thinking so little of Millennials…Second, it seems that an exclusive focus on children can backfire. Do we suddenly prevent people who would produce “genetically inferior” children from procreating, in the interest of bettering society? Do we treat couples without children as less than couples with children? Do we treat couple who adopt as less than couples who bear children? Why does “1 mother, 1 father” mean so much to raise healthy, good children? If I die, is my wife obligated to go out and get remarried so my daughter can have a father?
5. The loss of religious freedom: More than anything, this decision has been heralded as the end of religious freedom in America. Firstly, I am disturbed by the silencing of critics related to this decision and others. The idea that we will stifle and suppress discourse that we don’t agree with is terrifying. While I agree that the expansion of gay marriage is a good thing, I disdain the idea that I would shout at everyone who disagrees. In general, it seems as though our culture is in the middle of a huge expansion of stifling disagreeable thoughts and opinions. From the firing of tenured professors (Salaita) to the use of Title IX proceedings to suppress faculty on campuses, to the use of trigger warnings in college syllabi, to the harassment of people who are simply trying to voice their disagreement with the majority, we too often criticize and browbeat others into submission. That being said, if you are mocked publicly by others, if you own a business that people stop patronizing because of your personal views, if you are fired from a private company because of things you’ve said, if your friends desert you because of your political ideas, your first amendment rights have not been abridged or infringed. The government cannot prosecute you for your opinions or thoughts, but society can attach a stigma to you due to your opinions or thoughts. Do not assume that the first amendment protects you from persecution, it only protects you from prosecution.
Anyway, religious freedom. Perhaps I am misinformed, but I have not seen anything stating that clergy are being forced to perform wedding ceremonies for same-sex couples. If you work at the county clerk’s office and a same sex couple comes to get a marriage license, then you are legally obligated to do it, as an agent of the government. This is what the separation of church and state means. It’s not the silly little things, like whether we can or should pray before a town hall meeting, it’s the fact that as an agent of the government, acting on behalf of the government, you are obligated to perform your legal duty, and not let your religious beliefs interfere. If a polygamous Mormon works at the county clerk’s office, they cannot simply hand out polygamous marriage licenses, because they are illegal, no matter what their religious beliefs are. You can spend all the time you like, outside of your duties in government, advocating for your beliefs. If you truly cannot bring yourself to separate your religion with your legal obligation, then, perhaps a government job is not for you. I’m not saying all conservatives should quit government. Government, just like the private sector, needs diversity, and I include ideological diversity in that, and I hope that there are people out there that will comply with the law, while continuing to exercise their right to advocate to overturn the ruling or convince Americans that the ruling was wrong.
This was a very long post, and I certainly did not cover all the possible issues with the ruling. Again, I believe that same-sex couples should be allowed to be married, and I am pleased by the ruling. But, I do not think that the dissenting judges are “evil” or stupid. Let’s take their dissent, and the cultural dissent more broadly, seriously and engage with the ideas and what it means for us as a nation. What precedent does this set, outside of legalizing same sex marriage? Our public sphere of discourse relies on us engaging with ideas with which we disagree and weighing those ideas against the evidence prevented before us.