While I’ve never doubted that gay marriage was a positive social good (and I do mean that – never a doubt – my sister and I call ourselves the mad rationalizers for coming to decisions without rational thought, and then madly backfilling), I fear I must disembowel any notions that I might be a strait-laced liberal/progressive by expressing sympathy for Chief Justice Roberts this evening. In his dissent (contained in this document, starting on page 40), he remarks:
But this Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered).
Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. …
Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.
First of all, he is concerned the Court is making law, rather than interpreting law. His anguish at this is quite evident, and you have to respect the man for it.
Second, he evidences his concern that the decision of the Court will provoke a stronger polarization of society, and while this decision will bring solace to numerous homosexual couples who desire nothing more than stable, society-supported relationships, he is worrying about the other end of the spectrum – the continuing and strengthening embitterment of the far right of society. And while it may be tempting to write them off as “wingnuts”, I must remind the reader that said “wingnuts” are just as prone to reproduction as are those of who you approve – and thus the embitterment becomes a curse upon the next generation.
His remark about a government of laws, not of men also strikes a chord, as I have been trying to find time to construct a story (movie) involving, as a secondary theme, such a statement. It’s quite important, in my view, as a way to ensure that all people are equal before the law: you can’t enshrine that important principle in a government of men (where laws are created and enforced at the whim of those at the top), only in a government of laws. Thus, he accuses the five affirmers in this opinion of degrading the entire institution of our government. (This being my first time actually reading part of a SCOTUS opinion, I have no idea if such accusations are always made as a matter of form, or reserved for egregious mistakes.)
But the truly strong point is his remark
Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view.
And I do believe this is very true. Change from below is much more persuasive, much more a chance for truly thoughtful people to understand the motivations and reasons for a change – and to accept them and even support them. Orders from above? Many, many people hate to be pushed around by superior forces. Slamming this change through, as important as it is to the homosexual community and to its individual couples who live in states that had not yet accepted the idea, is going to continue to radicalize the conservatives – and not limited to the wingnuts. This decision may affirm the rational aspirations of society for stability and prosperity – but … not everyone is rational. That was unfair and untrue, I think; the proper phrase is Priorities differ. Whether or not someone believes gay marriage is right, when persuasion changes to brute force, the priority is no longer to discuss the proposal at hand, but to recall that brute force is the tool of the bully, and here, in America, public bullies are not tolerated.
After all, that’s what we were doing in the Revolutionary War, no?
OK, so all that said about my sympathy for the Chief Justice, this bit deserves criticism:
As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?
Never mind that marriage customs differ – sometimes radically – from culture to culture and across time. It’s almost irrelevant. This really ignores something fundamental: this is America. We’re the folks who change things at the drop of a hat if we think that will improve the general lot of mankind. We’re not the ones caught in the sclerotic social milieus that our ancestors escaped over the last 250 years, and that’s because we were willing to change. Change social systems, economic systems, clothing styles, our accents. If, by changing some marriage laws & customs, we can improve – vastly! – the lot of some 5% of our citizens, then we’ll do it, and those few who fear the wrath of their God can go cower under their beds.
That’s who we think we are. Have you forgotten, Chief Justice?
