Holding Leviathan by the Tail: A Story of Republicans and Same-Sex “Marriage”
This is a question that should, but apparently does not, occur to the signatories of a now-infamous amicus curiae brief submitted to the Supreme Court. Hundreds of nominally-conservative or –libertarian political consultants, campaign buffoons, and political activists who tell the world what they think for a living petitioned the Supreme Court against which they regularly rail to please force every state in the Union to change their laws and constitutions to sacramentalize sodomy.
The signatories make clear that they just want to force the entire country to sign onto their social agenda, and certainly don’t want the entirely foreseeable and increasingly already-realized consequences of this little project, where religious believers are forced to sin in the name of nebulous social justice. Much angst and ink have been spilled over this, mostly in the form of variously-literate references to Iscariot, Quisling, and Mr. Arnold; but I truly believe this is misplaced and unfair.
The better allusions are to Aethelred the Unready and Alfred E. Neuman. To believe that the federal government – of which the Supreme Court that makes these decisions and the Executive that enforces them are rather obviously parts – can be harnessed for this one (allegedly) good deed and then shoved back into a submissive posture requires either superhuman levels of naiveté, complete obliviousness to the entire history of federal governance for more than eighty years, feigned ignorance, or some combination of these.
For those on the left, for whom the past is the undiscovered country and the future a well-known utopia, this might be excusable. For those nominally on the right, who have unsuccessfully tried to lash Leviathan down to the sea bed or at least keep his eating habits under control for generations, this is inexcusable.
The essential argument before the Court is that state laws enshrining a millennia-old understanding of marriage – between a man and a woman – are inherent violations of the Equal Protection Clause, because they do not make allowance for something no one in his or her right mind imagined could possibly be the case two decades ago, that is, that marriage is really between two men or two women. (The polygamy case is up soon.) The argument is a tad more nuanced than that: taking a cue from years of Supreme Court and Federal Circuit Courts of Appeals cases, the argument is actually that laws enshrining thousands of years of unwritten precedent are actually hateful attempts to deny homosexuals the right to proclaim their sodomy as a marital union under state law. (Keep this progression in mind; it’s gonna be important in a bit.)
It is worth remembering that a bare couple of years ago, the Court narrowly avoided saying that sacramental sodomy was a Constitutional right; and that twelve years ago, the man who will almost certainly say it is was a pained Article III judge unconvincingly telling everyone that nothing of the sort could be the logical consequence of ruling that centuries-old state sodomy laws violated [pick your Constitutional provision here], a ruling in turn that would have doubtless surprised basically every American until sometime in the 1990s or so.
I mention this because the pattern of Leviathan is never retreat. It is always about more – more consumption, more growth, more power. The manner the Founders chose to check this – to make States sovereigns who would and could contest with the national government for power over citizens, and therefore leave citizens with paradoxically more freedom; and to leave important questions to democratic resolution – got tossed a century and more ago. Indeed, the pattern is pretty clear: Leviathan advances because men beg him to do so; and then, when he has reached that point, inertia takes over. Rights are slowly ground under; self-governance is eroded; and most impressively, the grease on which he slides often carries the name liberty, even as he consumes it.
Lest I be accused of mere bloviation, some explanation is in order.
Much political commentary occurs in a vacuum divorced from the real world; this is not so much intensified by social media as it is made much more accessible to laymen who are even further removed from the harsh shoals to which they are rarely exposed of a reality they think they know. For example, the recurring dustup over free speech, as in Congress shall make no law abridging the freedom of speech is fought between absolutist camps who merrily pretend away the fact that their concerns are already legally moot. Hundreds if not thousands of cases have set the margins for where the State may forbid or regulate speech; and what we are really fighting over is how much narrower the boundaries of nominally-free speech become.
The fight over speech is usually over things like which t-shirts may a child wear to a public school, where Klansmen can have rallies and when; that is, things that will little impact normal, well-adjusted people. But one underappreciated aspect of free speech regulation is that speech is less important than abortion.
Ridiculous, every signer of that brief who doesn’t follow these things or is lying outright would scoff. Even with Roe, speech is in the First Amendment. You’re just doing this for effect.
In 2000, the United States Supreme Court held that a Colorado law that forbade peaceful protesters (most of whom were in the dangerous business of praying or speaking gently) from congregating and speaking within eight feet of an abortion clinic entrance was just A-OK under the Constitution. The dissenters noted that this was clearly a content-based restriction on speech because of how the majority treasured abortion; the majority scoffed and pretended to look at its shoes. This decision was less than a decade after Planned Parenthood v. Casey, an opinion written in part by Justice Anthony Kennedy (the pained Article III judge above) that upheld the “core holding” of Roe v. Wade, so it shouldn’t have surprised anyone.
Curiously enough, the angriest dissent in the clinic speech case (Hill v. Colorado) was … Justice Anthony Kennedy, who was not merely determined to prove that his bulb was on a permanent dimmer, but was also outraged that this clear restriction on free speech was being done in the name of abortion.
But! Not to fear! In 2014, the Supreme Court held that a thirty-five foot buffer law (McCullen v. Coakley) was way off-limits and totally unconstitutional.
So: Eight feet away, and speech can be outlawed. Thirty-five feet away, it cannot. Somewhere in those twenty-seven feet is a magical bubble that begins a non-free-speech zone. Where? We’ll need more court cases to find out!
This is because – and every last one of those amici knows or should know this – when Leviathan finds a positive right, it tramples negative rights to make way for it, because positive rights expand its power of necessity. Abortion is often portrayed as a negative right (the right to be free of state interference in controlling one’s body); but even the dunces on the Supreme Court acknowledge glancingly that it’s a woman’s positive right to kill her child trumping the child’s positive right to live. And the former positive right must be protected from any negative rights.
You will note that I said Leviathan rather than the Court finds a positive right; and that is because the mechanism changes, but the result does not. Let’s stick with abortion and speech to understand this.
The United States Supreme Court legislated, pardon, ruled in 1973 that no state could do what it had done since before the Constitution was ratified and ban abortion (functionally, in companion cases, ever). By a narrow scrape, the Court refused to mandate funding of this atrocity by the federal government (a battle in which we still engage today), but after that, the fight began over whether people protesting the mass-murder of children could be allowed to do so – and the whole of the government joined in. The Supreme Court did not enact buffer zones, or try to apply the Racketeer Influenced and Corrupt Organizations Act against pro-life groups. The Supreme Court did not make it a federal offense to protest in the doorway of an infant abattoir, an offense present for no other class of businesses. The Supreme Court did not direct FDA approval of over-the-counter abortifacients. The Supreme Court did not set the Internal Revenue Service on pro-life groups.
Our government – our only real government, the national one – employs Margaret Thatcher’s famous ratchet effect across its branches, often beginning with the Supreme Court, and then picked up with gusto by Congress and the Executive; and then the subservient governments, the states and municipalities, follow suit; and then the Supreme Court ratifies what the others have done. A right to kill an unborn child becomes a licit restriction on speech to boot. Rinse, lather, repeat.
With no check on Leviathan’s growth, the cycle continues. We on the right know this. We have lived it. We have no excuse for pretending otherwise.
So it is that in the mid-Nineties, the current Chief Justice successfully argued to the Supreme Court that a law excluding homosexuals from affirmative action programs was a form of discrimination more or less like Jim Crow. The dissent cried that this was unprecedented, as what gays and lesbians experience is nothing like the historic atrocities set upon blacks, and no law or ruling had ever suggested otherwise; but the die was cast.
In 2003, the Supreme Court summarily overruled a twenty-year old precedent and untold centuries of law and decided that people had an inherent right to sodomize each other in private because that would help them fulfill their true selves. (Kennedy opinion, natch.) The dissent cried that this was the first step to gay marriage; no, no, the majority said.
A decade later, a state constitutional amendment defining marriage as it’s always been, entered by popular referendum in the most populous and one of the most liberal states, was struck down as inherently mean. The federal courts needed no additional signal to begin invalidating almost every state constitutional provision and law stating what had been obvious not even twenty years before.
Virtually every state that has put the question to its citizens or their elected representatives has determined that only a man and woman may marry; yet this avalanche of unelected judges overruling them is cited by the amici and everyone on their side as evidence of a sweeping tide of social change. Anyone claiming to fear Leviathan should be especially terrified of using his past acts as an inducement to future actions, and yet that is exactly what is being done here.
Yet were this terrible, awful, and extremely unbelievable naïveté not by itself enough, the amicus brief signers would have us believe that they still believe in religious liberty; after all, the brief assures us, the several states have strong constitutional protections of religious belief. This is at best moronic and at worst sophistic: Not only do we have concrete proof of states’ and courts’ willingness to trample religious belief and practice in the name of gay “marriage” and all its permutations, these same people are demanding that the Supreme Court destroy state constitutional provisions and laws in the name of their desired end.
Even were that not so, the amicus signers are playing with fire, something those on the right should understand well. Equal Protection is an especially dangerous ground on which to fight, because there are and can be no religious exceptions to it. The one provision of the Constitution other than the General Welfare clause in the Preamble that every progressive (and lawyer) loves is Congress shall make no law respecting an establishment of religion. There is no way the State can grant equal protection while carving out exceptions for religious believers; if I have the right to demand that everyone (but a lawyer! We made ourselves exempt) provide services for my wedding, that means everyone; if the right extends universally, there can be no exceptions for God-bothering.
And lest anyone protest that no one is demanding that the State ensure free access to all florist shops for gay couples, remember that we are already there. And even if we weren’t, we know from the history of Roe that Leviathan will move again. This new right will expand, it will damage other rights. When you ask the Court, when you ask Leviathan, to trample the people once — which is exactly what’s happening here — the trampling will continue. One might call this the law of unintended consequences; I prefer to call it the law of freaking obvious consequences of giving the State power.
This is what happens when you call Leviathan from the sea. You won’t chain him and you won’t weaken him.
Those on the right used to know this. The amicus curiae signatories, and their fellows, will learn it again – but to all of our detriment.