I just explained the right to dissent below, and while the Internet has probably said nearly all the words there are to say about Obergefell, I figured I'd give my short two cents.
The problem in this case seems to me to be one of jurisdiction. Nowhere in the Constitution is the federal government granted the power to change how states choose to define marriage. In fact, the federal government does not even have the power to generally define marriage at all. Yet that is exactly what the Supreme Court does in this case. I thought we just got finished saying that the government could not define marriage as between one man and one woman with the repeal of DOMA in United States v. Windsor two years ago, so I'm confused.
If you tell me that the Fourteenth Amendment's Equal Protection clause demands that same-sex couples have their relationships legally recognized under the term "marriage" nationwide, I will borrow a phrase from Justice Scalia in King v. Burwell: "Pure applesauce." Same-sex couples and homosexual persons have the exact same legal protections as heterosexual couples and persons. The laws apply equally to both. In fact, both homosexual and heterosexual persons had the same fundamental right to marry before this decision, since marriage has always been understood as the union of one man and one woman. If a gay man chose not to marry a woman, or a lesbian chose not to marry a man, this does not mean that they somehow had less of a right to marry than heterosexual men and women. Are single men and women deprived of the fundamental right to marriage because they choose not to get married? Of course not.
But perhaps you will reply that not only should everyone have the fundamental right to marry, everyone should have the fundamental right to marry someone they love. However, if I grant this, it leaves no reason to deny marriage to polygamous groups, those who wish to marry animals, or even those who are in love with inanimate objects. If marriage is based solely on whether I have feelings of love for my partner, what concrete objection could there possibly be to any of these unions?
I choose to believe that marriage is about something more. It's about, first and foremost, bearing children and raising them well. (If you want to object that infertile couples can't fulfill this objective and thus should not marry, by the way, I will reply that it's likely not for lack of trying, and that such couples could still have kids through various modern marvels of medicine.) Governments recognize marriage because they know that strong families with a committed mother and father are the best environment in which to raise future citizens. If the federal government wants to do some good, it should invest in programs that provide aid and opportunities for families, discouraging fathers or mothers from abandoning their children, strengthening families in tough financial straits.
Finally, as the dissenters in Obergefell so eloquently said, the judicial activism displayed by the Court is nothing short of astounding here. By deciding to overrule the majority of states and citizens in our country, they have effectively declared that they know better than the people. In this matter, the court has acted in a dictatorial manner, one completely foreign to the ideals of America.
Saturday, June 27, 2015
The Right To Dissent
After Obergefell v. Hodges was decided yesterday, it's been disappointing to me to see the way that so many have behaved on social media, on both sides of the gay marriage debate. Many conservatives are now convinced, and angrily proclaiming, that the country is going to hell, gay marriage supporters are going to hell, Justice Kennedy is going to hell - pretty much everyone is going to hell. Many liberals, meanwhile, are gleefully taunting conservatives like immature middle-schoolers for their outdated views that are "so yesterday," and crowing that "the debate is over."
As anyone who remembers Roe v. Wade will attest, that last taunt is nowhere near true. The debate is not over because five unelected lawyers said so. Opinions do not change overnight, no matter how distracted and listless the majority of the American population is. In fact, that's one of the major reasons that the four dissenting justices in this case disagreed with the majority: to decide that all states must perform and recognize same-sex marriages effectively ends the discussion of whether states should perform and recognize them. Americans of all political stripes have a tendency, as they have since the Founding, to closely identify what is legal with what is morally right. (Judges and lawyers are not immune to this tendency.) This is what leads to our confused opinion that our slate of civil rights must reflect our moral beliefs, rather than protecting our ability to hold whatever moral beliefs we please and to act accordingly.
However, this causes a problem. In our haste to sanctify our moral views as legally guaranteed rights, we shut out those who do not believe as we do. This is reflected in both of the responses I just mentioned.
The declaration that your opponent is most assuredly going to hell is a conversation stopper, however true you believe it to be. It's also not a way to convince people that what they believe is wrong, or at the very least worthy of further examination. Most people have strong emotional connections to their beliefs, and telling someone that they will be eternally tormented for theirs is at least discourteous, and at most unanswerable with anything other than "Nuh-uh!"
However, on the other side of the coin, to loudly assert that someone's views are outdated or on the "wrong side of history" provokes the same reaction. History with a capital H has no sides. It makes no moral judgments, because it is not a person. This is just another way of saying "your view is wrong because progress," and if anything, History shows us time and again what a hilariously incorrect statement that is. The progression of history is not mastered by any one moral view.
Both sides in this debate (and many others involving similarly touchy moral issues) need to remember to afford their opponents one very simple courtesy: the right to dissent. Conversation on moral issues should never just stop, no matter if five justices on the Supreme Court give their esteemed opinion on it or not. Law does not determine what is objectively right or wrong; if that were true, then for the first three years of the Civil War the South would have been objectively right to support slavery, since it was legal at the time. To stop conversation on an issue of this magnitude does a disservice to both sides of the debate, since it robs one side of a full-bodied opponent and another of the right to speak at all.
Some seem to have a problem with this basic concept of fairness, however. Take PennLive/The Patriot-News, in their editorial published yesterday:
No determination by any authority on earth should be taken as an opportunity to shut the door on dissent. It's only through dissent that change and progress occurs. The right to disagree is fundamental to our country and our democracy. Surely we can do so in a way that respects and honors each other, that offers all of us a chance to better form our moral judgments.
As anyone who remembers Roe v. Wade will attest, that last taunt is nowhere near true. The debate is not over because five unelected lawyers said so. Opinions do not change overnight, no matter how distracted and listless the majority of the American population is. In fact, that's one of the major reasons that the four dissenting justices in this case disagreed with the majority: to decide that all states must perform and recognize same-sex marriages effectively ends the discussion of whether states should perform and recognize them. Americans of all political stripes have a tendency, as they have since the Founding, to closely identify what is legal with what is morally right. (Judges and lawyers are not immune to this tendency.) This is what leads to our confused opinion that our slate of civil rights must reflect our moral beliefs, rather than protecting our ability to hold whatever moral beliefs we please and to act accordingly.
However, this causes a problem. In our haste to sanctify our moral views as legally guaranteed rights, we shut out those who do not believe as we do. This is reflected in both of the responses I just mentioned.
The declaration that your opponent is most assuredly going to hell is a conversation stopper, however true you believe it to be. It's also not a way to convince people that what they believe is wrong, or at the very least worthy of further examination. Most people have strong emotional connections to their beliefs, and telling someone that they will be eternally tormented for theirs is at least discourteous, and at most unanswerable with anything other than "Nuh-uh!"
However, on the other side of the coin, to loudly assert that someone's views are outdated or on the "wrong side of history" provokes the same reaction. History with a capital H has no sides. It makes no moral judgments, because it is not a person. This is just another way of saying "your view is wrong because progress," and if anything, History shows us time and again what a hilariously incorrect statement that is. The progression of history is not mastered by any one moral view.
Both sides in this debate (and many others involving similarly touchy moral issues) need to remember to afford their opponents one very simple courtesy: the right to dissent. Conversation on moral issues should never just stop, no matter if five justices on the Supreme Court give their esteemed opinion on it or not. Law does not determine what is objectively right or wrong; if that were true, then for the first three years of the Civil War the South would have been objectively right to support slavery, since it was legal at the time. To stop conversation on an issue of this magnitude does a disservice to both sides of the debate, since it robs one side of a full-bodied opponent and another of the right to speak at all.
Some seem to have a problem with this basic concept of fairness, however. Take PennLive/The Patriot-News, in their editorial published yesterday:
As a result of Friday's ruling, PennLive/The Patriot-News will very strictly limit op-Eds and letters to the editor in opposition to same-sex marriage. These unions are now the law of the land. And we will not publish such letters and op-Eds any more than we would publish those that are racist, sexist or anti-Semitic.Setting aside the fact the faulty but all-too-common comparison between racism and opposition to same-sex marriage (here's a better rebuttal from a Stanford Law professor), this is censorship, plain and simple. If the tables were turned, and Kennedy had voted the other way in Obergefell, no news outlet would be caught dead saying that they would very strictly limit opinion pieces arguing in favor of same-sex marriage. It's ironic that the same op-ed claims in its final line that "we are all more free as a result" of the Court's decision, right after limiting the freedom of some of its readers.
No determination by any authority on earth should be taken as an opportunity to shut the door on dissent. It's only through dissent that change and progress occurs. The right to disagree is fundamental to our country and our democracy. Surely we can do so in a way that respects and honors each other, that offers all of us a chance to better form our moral judgments.
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