This is a political body whose decisions have always had less to do with Constitutional considerations than with the prevailing ideological bias of the Justices. It is a body which, in various incarnations, has upheld slavery (Dred Scott v. Sandford, 1857: African Americans cannot be citizens; North Carolina v. Mann, 1830: slave owners had absolute authority over slaves), segregation (Plessy v. Ferguson, 1896: "separate but equal" was just fine but dandy), abortion (Roe v. Wade, 1973) and the internment of Japanese-Americans during WWII (Korematsu v. United States, 1944). This is a body whose first significant act of jurisprudence was to arrogate to itself powers not explicitly authorized in the Constitution (Marbury v. Madison, 1803: the power of judicial review). This is a body whose activity has increasingly overstepped the bounds of jurisprudence and trod on legislation (Griswold v. Connecticut, 1965, Roe v. Wade, and many others).
It is also a body that is woefully ignorant of human nature and history.
It is in the nature of government to expand on its power. It must therefore be in the nature of separate branches of government to expand on their power. This is why the Constitution was drafted in such a way as to limit the power of each branch, for each to impose checks on the others.
The problem is, as the liberals and anarchists frequently put it, the Constitution is "just a piece of paper." It has no real power unless We the People adhere to it and insist that our government do the same. And this is something that We the People have been lax in doing almost from the start, but with increasingly bad results as this era of progressivism has dawned and washed over the nation. In the wake of the enactment of a permanent income tax, legislators, always preoccupied with reelection, became concerned primarily with voting Treasury largess back to their home districts in pursuit of reelection. And the people, realizing that the taxpayers could now foot the bill for anything they wanted, happily threw aside their liberties in pursuit of security and ease.
Feedback loops have grown and intensified over the generations, reinforcing these problems, leading today to right where we are now. Presidents are no longer just Commanders In Chief with the power to propose, sign into law or veto legislation; they are now policymakers by proxy, using their power to appoint Justices to stand in for the legislative power Constitutionally denied to them.
There are a number of approaches to understanding the actions of the Court, but none has the explanatory power of the Attitudinal Model. One of the political scientists who wrote the book on the model, Jeffrey Segal, was my political science professor back in the early 90s, and the book was one of our course texts. In it, he and coauthor Harold Spaeth performed an analysis of Court decisions, taking in the biases of the Justices, and found that they could predict to a very good degree of confidence the outcomes of Court cases throughout history. The more recent edition of the book, The Supreme Court and the Attitudinal Model Revisited, covers even more history, virtually the entire series of SCOTUS cases, and finds that this expanded data set strengthens their conclusions. To be sure, the model has its critics, but given its explanatory power, the criticism amounts to little more than quibbling about special cases. If we regard the ideological attitudes as the primary mechanism driving Court decisions, and allow for group dynamics (face-saving, consensus-building, favor-trading) to play their role in how the Justices work together (and fail to do so), then we can arrive at a very clear, very complete picture of how things happen at Court. And given that their model accurately predicted the outcome of Bush v. Gore, 2000, their model passes the test of falsifiability and qualifies as a true theory.
Segal and Spaeth offer, early in the book, a comparison between different models of jurisprudence and explain the shortcomings of each with regard to predicting outcomes. From chapter 2, "Models of Decision Making," page 59:
Akin to equivocation about the First Amendment is the longstanding rule that the Constitution's absolute prohibition on laws impairing the obligation of contract is not to be read literally. Rather, the Court will uphold such laws, so long as they are reasonable. "Laws which restrict a party to those gains reasonably to be expected from the contract are not subject to attack under the Contract Clause, notwithstanding that they technically alter an obligation of contract."
Rights not explicitly found in the Constitution, such as travel and privacy, are currently upheld with the strictest scrutiny. This is not to say that the justices decided these cases incorrectly. We only note that if the Court can regularly read rights out of the Constitution that it explicitly contains while simultaneously reading into the Constitution rights that it does not explicitly embrace, then the plain meaning rule fails as an explanation of what the Court has done. Indeed, not only has no one systematically demonstrated that plain meaning influences the decisions of Supreme Court cases, no proponent has even suggested a falsifiable test for this component of the legal model.
Later in the same chapter, in the discussion on the normative view (page 61), with my own emphasis added:
While Supreme Court justices generally deny that their own opinions go beyond a fair-minded interpretation of the text of the Constitution or the intent of the Framers, elementary common sense establishes the opposite. In 1905, the Supreme Court declared that New York did not have the right to limit the hours bakers could work. The case, Lochner v. New York, rested on a right to contract that the Court found implicit in the Fourteenth Amendment's due process clause. Of course, the amendment says nothing about the right to contract. Moreover, the liberty guaranteed by the amendment is certainly not absolute. For these reasons, among others, Lochner received heavy criticism, and thirty-two years later the Court overruled it.
In 1965, the Court overturned a Connecticut law that prohibited anyone in the state, married or otherwise, from using contraceptives. The Court's majority opinion, written by Justice Douglas, created a general right to privacy. The decision did not rest on any specific constitutional clause, but instead on the "penumbras and emanations" of the First, Third, Fourth, Fifth, Ninth, and Fourteenth Amendments. Like the right to contract, the right to privacy can nowhere be found in the Constitution. Neither, for that matter, can the right to marry or bear children.
The arguments for and against interpretation of the Constitution bound to the intent of the Framers have dominated legalistic critiques of the Supreme Court in past years. This partially results because the Court struck down antiabortion laws in forty-six of the fifty states in Roe v. Wade and nearly overruled this decision in Webster V. Reproductive Services. The Roe opinion, like those in Lochner and Griswold, has only imperceptible ties to the text of the Constitution or the intent of the Framers.
Much of the rest of the book is concerned with the details of how the Attitudinal Model works and in studying specific Court cases in light of this operation. In the section on Roe v. Wade, the authors make the point, manifest to anyone who has read the Constitution, that the Court's powers are defined by Article III, and that this article empowers the Court to rule only in matters of law, not of rights. Although progressives frequently point out that the Ninth Amendment declares that not all rights have been enumerated in the Constitution nor are necessarily known to people in any historical epoch, the Ninth does not grant the power of discovering rights to the Court.
The reasoning behind conservatives' accusations of judicial activism, or "legislating from the bench," is pretty straightforward. The separation of powers is intended to prevent one branch from intruding on the operation of another. Congress drafts and passes laws. The Courts rule on whether laws are being violated. In simpler terms, the legislature creates a legal standard, and the courts uphold that standard. For the Court to rule on matters of rights is to overstep the limits placed by Article III in a particularly heinous way: it not only upholds the standards, but also creates them. Creating those legal standards is an activity we entrust our elected officials with. The Court's activity is, by design, removed from the democratic process; SCOTUS is the least democratic body (in a representative sense) in the entire government apparatus, at least as spelled out by the Constitution. (We'll leave aside, for a later time, the vast body of regulatory agencies not spelled out by the Constitution.)
It follows that the Ninth Amendment is intended for Congress, not the Court, to act on. If a new right is "discovered," then it is incumbent upon Congress to enshrine the right into law, thereby creating the legal standard, which the Court can then uphold.
What this means is that decisions like Griswold, Roe and today's ruling, Obergefell v. Hodges, are inherently unconstitutional. And, as might be expected, the breakdown of the votes confirms the Attitudinal Model: the four most liberal Justices sided with swing vote Justice Kennedy, the author of the opinion, and the four most conservative Justices dissented. Chief Justice Roberts wrote, in one dissent, “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”
The National Review was quick to point out that Kennedy's decision on this matter contradicts his previous arguments in U.S. v. Windsor, 2013, in which he argued that marriage is not a matter to be defined by the federal government for the states, but one to be defined by each state for all within each state’s jurisdiction. His position on the "right to marry" appears situational, depending on whether the issue is the question of existing states' statutes permitting it, or the federal government prohibiting it: sometimes the states are the highest authority, and sometimes the federal government is. Here, we can regard "situational" as identical to "attitudinal," because the outcome is the same. It is similarly no surprise that Justice Kagan, who during her confirmation process, insisted that her liberal bias would play no role in her decisionmaking, aligned here with Kennedy. (Kennedy is regarded as a "swing vote" by virtue of having voted with both conservative and liberal majorities in previous cases, but a quick look at his Conservapedia profile demonstrates that he sides with liberals one-third again as often as with conservatives, suggesting he tilts about two-thirds to the left.)
What the Obergefell decision "creates" is an untrammeled right for gays to marry each other. The text of the decision argues that there is a right to marry, and that gays are no less party to this right than straights.
Let's examine this assertion in detail.
First, we need to establish whether there is a fundamental right to marry, for either straights or gays.
There is a long history of precedents that the Court can fall back on in making the case that marriage is a "fundamental right." The question, then, is whether these precedents are valid.
On the question of the general validity of precedent, Segal and Spaeth offer this (p. 77):
Though precedent, like plain meaning and intent, looks backward, it does not appreciably restrict judicial discretion, for a number of reasons. First, and most basic, precedents lie on both sides of most every controversy, at least at the appellate level. If losing litigants at trial did not have authority to support their contentions, no basis for appeal would exist. Even judges themselves recognize this fact. Judge Frank M. Coffin of the U. S. Court of Appeals for the First Circuit said: "Precedent is certainly real and we learn to live with it. But if precedent clearly governed, a case would never get as far as the Court of Appeals: the parties would settle."
That view was echoed by Judge Frank H. Easterbrook of the United States Court of Appeals for the Seventh Circuit, in Chicago...
As further evidence that precedents exist to support the contentions of both parties, merely consult any appellate court case containing a dissenting opinion. This, as well as the majority opinion, will likely contain a substantial number of references to previously decided cases. Reference to these cases will undoubtedly show that those cited by the majority support its decision, while those specified by the dissent bolster its contrary judgment. The same can be said for cases without dissent, as any reading of the litigants' briefs will demonstrate.
But this argument won't satisfy those for whom precedent is paramount; those for whom, say the role of Griswold as precedent in Roe makes the difference between a valid decision and an invalid one. What we need, in addition to doubt cast upon precedent in general, is something specific with which to attack these particular precedents. And I think I can manage that by delving into the question of what "rights" really are.
Browse any online dictionary and you're likely to see a "right" defined as "a moral or legal entitlement to have or obtain something or to act in a certain way," or variations thereupon. To get to a properly nuanced meaning, you have to find documentation specific to a political context. The Stanford Encyclopedia of Philosophy entry on Rights provides perhaps the most nuanced discussion, but it actually confuses the issue in great measure by conflating "rights" with "privileges" throughout, by way of relying on the Hohfeldian definition of "privilege," which is actually more akin to "liberty" (which the article does at least acknowledge):
You have a right to pick up a shell that you find on the beach. This right is a privilege:
A has a privilege to φ if and only if A has no duty not to φ.
To say that you have a right to pick up the shell is to say that you have no duty not to pick it up. You will not be violating any duty not to pick up the shell should you decide to do so. Similarly your right to sit in an empty seat in the cinema, and your right to paint your bedroom red, are also privileges. Privilege-rights mark out what their bearer has no duty not to do. When a US President invokes “executive privilege” to resist an assertion that he has a duty not to conceal evidence, he is invoking a Hohfeldian privilege.
Similarly, a license (to drive, to perform surgery, to kill) endows its holder with a privilege to engage in the licensed activity.
(Some writers on rights have preferred to speak of “liberties” instead of “privileges” (e.g., Steiner 1994, 59–60). Others have given these two terms different definitions (e.g., Thomson 1990, 53–55). To avoid confusion, this entry will always use “privilege” and never “liberty” to refer to the incident defined above.)
The Wiki on Rights defines them, at the outset, as "legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory." It then goes into some detail delineating the various conceptions of rights at play in politics.
Some of these conceptions are of little use in this specific debate, as in the distinction between "natural" and "legal" rights; the Obergefell decision purports to create a legal right, but in doing so obviously oversteps Constitutional authority, whereas there appears to be no natural right to marriage at all, for reasons we'll get into shortly. The "claim rights" versus "liberty rights" distinction also seems somewhat moot, since what we are referring to as "gay marriage" isn't actually forcibly prohibited by any state; states are simply refusing to recognize the marriages of people who engage in such marriages. You have always been "free" to marry in the sense that you could travel to a state where it was legal and have the ceremony performed; but your home state may not have been under any obligation to recognize the result.
The distinction that appears to have the most merit here, and which indeed is at the heart of libertarian (and often conservative) politics is the distinction between negative and positive rights.
Positive rights are permissions to do things, or entitlements to be done unto. One example of a positive right is the purported "right to welfare."
Negative rights are permissions not to do things, or entitlements to be left alone. Often the distinction is invoked by libertarians who think of a negative right as an entitlement to non-interference such as a right against being assaulted.
The Wiki on Negative and Positive Rights goes into detail on this distinction, particularly the problem of when these kinds of rights come into conflict. This problem is actually the central problem that libertarianism seeks to resolve.
Negative rights are obviously the purest form of rights, in that they do not impose an obligation on anybody else, and therefore promote liberty to a greater degree than any other kind. They also seem to be most consistent with the intent of the Founders, as an examination of their conception of civil rights will demonstrate. We can often regard rights as falling into two main categories: property rights and civil rights. "Property rights" are those rights that give you exclusive claim to your own property. You can sell, destroy, give, alter, damage, or abandon property as you see fit. Nobody else can engage in any of those activities, without your permission, without committing a crime. Property law implicitly acknowledges that property rights are negative rights.
What about civil rights?
The expression "civil rights" is often construed to refer to equality-oriented legislature, mostly enacted in the mid-20th century, intended to bring African American (and other minority group) citizens up to legal and social parity with the white majority. However, the expression has a deeper and older meaning, rooted (like the concept of negative rights itself) in the Enlightenment-era thinking that informed the Revolutionaries and Framers of the Constitution. Much debate at the Constitutional Convention centered around whether there was any need to include a Bill of Rights in the Constitution. Some thought that doing so would create redundancy (as they saw the Constitution itself as a sort of Bill of Rights); others thought it would create uncertainty for future generations by way of unnecessarily limiting the Constitution's protections to rights that were then known and agreed-upon. The Anti-Federalist faction insisted that a separate Bill was required in order to cleanly establish what liberties government might not infringe upon. Thomas Jefferson wrote that at least drafting a Bill would allow for protections of such rights as were enumerated: "Half a loaf is better than no bread."
The underlying debate was, as it is now, the amount of power the federal government should have over our everyday lives. The drafter of the Constitution's first draft, John Rutledge, argued that the federal government should have limited power, and that the Constitution should explicitly set the boundaries. Although disagreement as to the limits of power continues to this day, Rutledge's basic premise remains enshrined in the division of powers and in the clause that asserts that all powers not expressly provided for the federal government revert automatically to the states and to the people. The objections of at least some of the Anti-Federalists were mollified, to at least some degree, by the inclusion of the Ninth Amendment among those listed in the Bill.
The philosophy of the Framers, then (with some dissent, as in the case of Alexander Hamilton), was that the individual citizen should remain sovereign, and that the federal government should only operate within the bounds permitted to it. This concept is the basis for civil rights: the sovereignty of the citizen. "Civil rights" are those rights which protect you from government, and to a lesser degree, from other citizens. They are the rights that defend your sovereignty. We'll examine a few in turn to see how this works, bearing in mind two key points:
1. "Freedom of conscience" isn't specified in any one Amendment, but is rather distributed over various aspects of the First. This is the freedom you have that prohibits the state from indoctrinating you.
2. The "right to keep and bear arms" isn't intended solely to provide a person with the means to hunt, protect his property and repel invaders; it is also intended to provide the citizen with a means of resisting government tyranny.
Your right to free speech, then, protects you as a citizen by protecting you from government abuse in the event that you criticize it, and enables you to participate in the political process by sharing your views with other citizens. Your right to speak freely exists not because the government, or the market, must provide you with a voice, but because the government cannot legitimately silence you (at least not without first employing due process to the fullest extent).
Your right to worship freely protects you as a citizen by protecting you from forcibly-imposed beliefs. It exists not because the government, or the market, must provide you with a place of worship and religious practices, but because the government cannot legitimately deprive you of these things.
Your right to keep and bear arms protects you as a citizen by preventing the government from maintaining a total monopoly on the use of force. This right exists not because the government, or the market, must provide you with weapons, but because the government cannot legitimately disarm you (again, without due process).
Your right to be safe and secure in your home protects you as a citizen by guaranteeing that your home will not become utilized against your will by the military, nor searched without your consent (or duly-procured warrant). This right exists not because the government, or market, must provide you with a home, but because government cannot legitimately violate your home.
What this all ultimately means is that you are born with your rights. Indeed, you are conceived with them. They are "human rights," and as such are your endowment as a human being, not as an American or even a post-natal human.
I believe it is safe to generalize "rights" as "positive rights" on this basis, and to then move on to the question of whether marriage is, or has ever been, a right.
If we define a "right" as a liberty that is yours by default (one that doesn't have to be granted by any authority, but which can still perhaps be forfeited through act of your own), and one that imposes no claim on anybody else, then we can distinguish this from "privilege" by defining the latter as either a liberty that must be granted to you, or one that imposes some obligation on someone else.
Marriage doesn't fall into the first category at all. It both requires some kind of authorization and imposes an obligation on others. To understand why, we must now resort to paleoanthropology, and here I must synthesize various writings, notably Guns, Germs and Steel by Jared Diamond, The Moral Animal by Robert Wright, Before the Dawn by Nicholas Wade, and After the Ice by Steven Mithen.
This is the picture that emerges from the study of the rise of civilization from its foraging / pastoralist roots. Prior to the advent of civilization, norms such as private property and formalized marriage were essentially absent, because of the way human groups lived. A group was small (typically < 100 individuals), and everybody knew everybody else. Everybody was in fact related to everybody else. The group was highly mobile, so possessions were minimal. The group moved over a wide range, and didn't defend a fixed territory (but did maintain a roving group territory centered on the group's current location). Hierarchy existed, but it was informal by modern standards (although in most cases, much more rigid and unforgiving of transgression). Nonetheless, there were rules, and people had to abide by them in order to remain in the group. Religion didn't exist in any formal capacity because religion, like trade and government, requires permanent apparatus of the sort that couldn't be carried around in that natural state. (A sort of proto-religion very likely existed prior to the initial waves of migration out of Africa, about 50,000 years ago, given how universal religion has been among human societies, but here we're concerned with organized religion, which is regarded as dating back to the onset of the Neolithic Revolution, some 11,000 years ago.)
Under those conditions, kinship bonds were sufficient to maintain peace and order within the group with a minimum of hierarchical rigor. A biological feature known as "kin selection," operating through a mechanism called nepotistic altruism, sufficed to maintain those kinship bonds. Kin selection works to promote group cohesion by encouraging individuals to share and risk their lives for each other. If you die by risking your life to save someone else, or by sacrificing too much of your resources in assisting them, then at least some of your genes will survive (in them), and that's enough to maintain the genetic feedback that kept the kinship instinct active.
Humans have an extraordinarily long childhood, because our infants are born in a quasi-altricial state. This is due to the competing demands of an upright posture and childbirth on the female pelvis, a condition unique in the animal kingdom. In a fission / fusion, sexually-dimorphic animal such as any of the higher primates, the group forages as it moves and the gender groups support each other by sharing resources as needed. That works in the apes, but as humans moved on to a more carnivorous diet, the male gender group became more oriented on hunting, while the female gender group maintained the gathering lifestyle. So the fission / fusion arrangement evolved such that the males moved out to hunt during the day, leaving the gatherers and the childbearers to socialize and accomplish their work, and at the end of the day both groups reunited.
The problem was that a woman with a child, or more than one child, could not provide enough material for herself and for her children. Even borrowing material from other females was problematic if they too were pregnant or had children. So another mechanism had to be innovated: pair bonding. To ensure male parental investment, a social structure had to come into existence that encouraged the men to fall in love with the women and take care of them, even at risk to themselves. (Note that pair bonding is not a common feature of other apes, but is universal among humans.) Pair bonding worked because the males and females were essentially segregated from each other most of the time, limiting opportunities for infidelity (which would gravely undermine the males' incentive for parental investment).
All this worked fine in the natural state, but faced serious problems once groups began settling down into urbanized settings and developed a new, civilized form of division of labor. In this setting, the fission / fusion arrangement was quickly eroded, and males and females found themselves mixing much more freely. Private homes were constructed, and couples, both licit and illicit, could escape prying eyes to engage in reproductive activity. In order to promote fidelity, a whole new system of stigmas and incentives had to arise. That is what marriage and religion came into existence to promote. In all civilizations, marriage came about as a means of not only promoting parental investment, but seeing to the generational transfer of values (thereby maintaining cultural identity over time). At the same time, the demand for group cohesion intensified, because now people were having to settle onto much smaller group territories among people unrelated to themselves. Kin selection gave way to "group selection," promoted by reciprocal altruism. Now it's not just genes that encourage us to do unto others, but cultural affinity. We regard as "kin" those who are like ourselves culturally, those who are willing to reciprocate in turn at some later time. Simultaneous with these developments, private property and all the pertinent legal apparatus came into existence, so naturally marriage also incorporated the joint ownership and the inheritance of property.
Religion's role is to promote group cohesion from the bottom up, so to speak. It creates a society or subsociety, within the context of civilization, in which people come together in common practice. They all watch each other, all impose stigma, approval, disapproval and taboo on each other, in order to keep the whole engaged in behaviors that are seen as beneficial to the group. (This imposition of shared norms and values is morality. A "personal code" is not morality, because it doesn't involve peer pressure. Nobody else is going to steer you back onto the path if you wander off, and that's why so many people with a "personal morality" are able to simply rationalize their misbehaviors and never return to the straight and narrow.)
At the same time, governments come into existence in order to promote group cohesion from the top down. Government pressure, unlike peer pressure, is formalized and carries specific penalties for failure to comply. One reason for this is to codify the rules of the group so that new entrants can be quickly apprised of the culture they're joining.
Civilization has changed a great deal since then, but the requirements for group cohesion and fidelity have not. As long as those requirements remain, marriage, religion and government will have to continue to operate in the same roles that they evolved to fill. Civilization is inherently less free than the natural state. Them's the breaks. The tradeoff is relative stability and vast population growth. Murder rates and rape rates and violent crime in general are far less frequent in civilization than in the natural state (a fact to which Diamond, and also Steven Pinker, have devoted a great deal of attention). So in part, what we're trading for, by sacrificing some liberty, is a freedom from violence.
Beyond this, the fact remains that we're largely still adapted to the ancestral environment, and this means our children still require an appropriate set of parents: one from each gender. The absence of fathers from a home is one of the most significant predictors of delinquency, poverty and later tendencies toward violent crime.
This is inescapable. Two mothers cannot function as a mother and a father. Two fathers cannot function as a mother and a father.
But I digress. The salient point here is that marriage evolved to perform a crucial social function, and that it evolved under the oversight of religious authorities. Religion has always worked to encourage marriage, but it has also always worked to qualify those who would seek to marry. Marriage has always required qualifications, usually in the form of a willingness to submit to the more rigorous norms of the married caste. (This qualification would seem to meet the Diamondian definition of selection for docility, a prerequisite for being domesticated, and since it applies here to humans, it would also meet the Ardreyan definition for self-domestication. If civilization is indeed a system entailing self-domestication of humans, then marriage is one of the most prominent pillars elevating it from the natural state.)
Religions have required their penitents to obey their rules, but also to attend training, be initiated into the mystical aspects of marriage, to seek counseling when things go awry. There have, in short, always been barriers to entry, and these have helped maintain the integrity of the institution by discouraging dilettantes from entering it. At the same time, these barriers--as most barriers tend to do--have served as barriers to exit. Divorce has been frowned upon or prohibited by most religions throughout history. The point of this is, again, to discourage facile entry to the institution, and also to maintain the structure that results, largely for the sake of the children who may have come into existence since the original forging of the bond.
This point is often lost on progressives who chortle over the "sanctity of marriage" while pointing out that divorce is now at least half as common as marriage itself, and that single mothers are on their way to becoming as common as married couples with children. They seem to forget that up until the middle third of the 20th century, neither of these trends had become established, and that they are in fact largely the consequence of the liberalization of sexual mores that accompanied (and in some ways preceded) the rise of the counterculture in the 1960s, as well as of the rise of the welfare state (which eradicated the incentives to work hard, save money, and marry, particularly among black households). These were factors beyond the control of religion, and largely beyond the control of society, taking place initially either at the hands of disaffected subsocieties or at the hands of an increasingly-powerful federal government.
As people increasingly sought sex outside of marriage, religion increasingly lost its ability to impose rules on procreation. As the government made welfare entitlements increasingly available, families increasingly became broken, or failed from the outset. What we're left with today is an "anything goes" mindset in which the notion of adhering to rules of conduct in order to engage in procreation is considered quaint, outmoded, even troglodytic.
And this is, I believe, the biggest part of the popular conception of marriage as a "right." Nonetheless, for the vast majority of humanity, for the vast bulk of our history on this planet, marriage was always conditional, and was never regarded as a right. Marriage was always a privilege, and even today this remains true. States license marriage. Some hasten to point out that a state will automatically issue a license to anyone who requests one. This does not change the fact that the license is a condition for marriage, and rights do not have conditions. Marriage is a privilege that is granted, at the very least, via petitioning of the state, and often enough with the additional petitioning of the religious authority. It follows that not even straights have a right to marry. They are granted the privilege of marrying by religious authorities that recognize the potential for mixed-gender couples to reproduce, and the state, in seeking to uphold its end of the bargain in promoting marriage, has always followed suit, until fairly recently in history.
So marriage appears to fail one of our two proposed tests: it is not an unconditional liberty. Does it impose an obligation on others? The obvious answer is of course it does. In addition to your having to seek the permission of your priest / rabbi / whomever, you also have to seek the permission of your intended. Depending on the subculture you participate in, you're also expected to seek the permission of his / her family, and sometimes of the entire community.
Marriage has never been simply an arrangement between a man and a woman. It has always also involved the community. Civilization has a stake in the continuation of the society and in the generational transfer of norms. This is precisely why governments also license marriage, and why they provide tax breaks and other financial incentives to those considering marriage. Wedding ceremonies take place before crowds; you are married "in the sight of God and Man," in the words of some service providers. Even if you choose a small, private ceremony, before a Justice of the Peace instead of a priest, you are still imposing the obligation to provide the service on the person performing the ceremony. You are certainly imposing the obligation to marry you on the person with whom you're standing in front of that JP.
This touches on another topic I'll go into greater detail on in a later post: the fact that products and services cannot qualify as rights.
Suffice for now to point out that if you have a right to marry, then the Justice of the Peace is obligated to perform the ceremony, even if you cannot afford to pay for it. If you have a right to marry, then the person to whom you're proposing cannot turn you down. In the purest, most absolute sense of the word "right," if you had a right to marry, you would be born married.
These are the kinds of absurdities that result from a misapplication of the concept of rights. Furthermore, since the legalization has taken effect well into the careers of many JPs--who may have taken their job years or decades before this became a possibility--it is likely that this will violate the beliefs and personal values of many such people, who will nonetheless be compelled to perform these ceremonies by the state. Unlike the state's refusal to recognize a marriage, this is a use of force. This does violate the non-aggression principle.
So, as has been the case numerous times in the past, the Supreme Court is simply out of its depth and is misconstruing the concept of rights. As Segal and Spaeth have pointed out, when SCOTUS declares a right to exist, it is in fact legislating (a fact that is actually acknowledged, inadvertently perhaps, by many liberals who say things like "Roe v. Wade is the law of the land"). Obergefell v. Hodges is a bad decision because it creates a right, because it misrepresents what "rights" are, and because it prioritizes the nebulous concept of "social justice" over liberty, specifically over liberties already explicitly enumerated in the Bill of Rights (namely, the free practice of religion, which seems to be the most immediately threatened).
This ruling is symptomatic of a much broader problem in which the federal government has been utilized by progressive elements as a stage for redefining privileges as rights. My objection here is part and parcel of the objection to judicial activism, but applies in particular to the distinction between federal and state governments. The federal stage is, or should be, reserved for issues of civil rights and property rights. All other matters fall on the states. If marriage is not a right--for straights or gays--then questions of marriage and its definition do not belong at the federal level. If government is to play a role in determining whether these kinds of arrangements can be recognized, then it should be done at a state level, where the democratic process can do its work. Let the people in each jurisdiction decide whether they are willing to redefine marriage in this way.
If, as I'm concerned about, the advent of widespread gay marriage results in millions of children being raised in same-sex households, then it's entirely possible that long-term unintended consequences of this move could come back to haunt our nation, just as they have with the Sexual Revolution, the welfare state, and various forms of economic regulation.
This is the primary reason I oppose gay marriage.
However, I could be completely wrong about that impact, and I fully acknowledge this. Simply deducing that fundamentally altering the structure of civilization's most atomic unit--the family--will do harm to society, on the basis that every other fundamental alteration ever put into play by progressive activists has done harm to society, is admittedly facile. (Until enough children of gay couples have grown to adulthood to provide statistical significance in the study of outcomes, finding examples of unhappy children from such arrangements is just cherry-picking, despite the mountains of evidence that demonstrate that kinship bonds are strongest in biologically-related individuals.)
But this is why states' rights exists. There is no clearer demarcation around communities of similar values than a state line. If the people in State A want to vote to change marriage, and the people of State B don't, then the people on both sides of that state line should be able to impose laws that represent their respective moralities, and leave people on the other side of the line alone. If the children of gay couples grow up to be, on average, no more screwed-up than the children of straight couples or single parents, then my concern will prove to be unfounded, and over time, more and more states will recognize this and perhaps vote in the same change.
However, it is the case with most unintended consequences that they're not manifest within a few years of their initiating event. In the case of children raised by gay couples, I suspect that the problems won't be obvious until the next generation, when they're raising their own children.
In any event, my opposition doesn't extend beyond my own state. I have no desire to attempt to convince people in other communities to share my norms, values or opinions. All I really want is to ensure that, if the state is going to insist on intruding upon matters of tradition that have always (until very recently) been the province of religion, that it do so in a democratic way, rather than through executive order or judicial fiat, and that the moral diversity of the nation be respected by allowing each state to find its own way.
Another solution that I would have been happy with would be to see government get out of the marriage business altogether and allow religions to define it as they see fit. Oklahoma was already moving in that direction, although there was a certain paradoxical resistance on the party of the gay community. However, that initiative now appears to be moot.
Two questions remain: do proponents of gay marriage have legitimate grievances, and it is correct to discriminate against gays in this (or any) regard?
Let's deal with the second question first, as it's more fundamental. The answer, of course, is yes and no. No in the sense that nobody should ever, for any reason, be discriminated against in a civil rights context. We all have the same rights. We have the right to be born, to participate in the market, to accumulate property, to participate in the political process, to defend ourselves, to pursue our own ideology. Discrimination, in the context of rights, is absolutely forbidden. On the other hand, the answer is also Yes in that privilege always discriminates. There are always rules for membership in any group, whether the group be your nation, your community, your social club, your circle of friends, or your religion. Marriage, as we have seen, has always been a privilege. And those authorities who offer marriage to their members have always imposed membership requirements. Discrimination, in the context of privileges, is mandatory.
This is the primary reason I oppose gay marriage.
However, I could be completely wrong about that impact, and I fully acknowledge this. Simply deducing that fundamentally altering the structure of civilization's most atomic unit--the family--will do harm to society, on the basis that every other fundamental alteration ever put into play by progressive activists has done harm to society, is admittedly facile. (Until enough children of gay couples have grown to adulthood to provide statistical significance in the study of outcomes, finding examples of unhappy children from such arrangements is just cherry-picking, despite the mountains of evidence that demonstrate that kinship bonds are strongest in biologically-related individuals.)
But this is why states' rights exists. There is no clearer demarcation around communities of similar values than a state line. If the people in State A want to vote to change marriage, and the people of State B don't, then the people on both sides of that state line should be able to impose laws that represent their respective moralities, and leave people on the other side of the line alone. If the children of gay couples grow up to be, on average, no more screwed-up than the children of straight couples or single parents, then my concern will prove to be unfounded, and over time, more and more states will recognize this and perhaps vote in the same change.
However, it is the case with most unintended consequences that they're not manifest within a few years of their initiating event. In the case of children raised by gay couples, I suspect that the problems won't be obvious until the next generation, when they're raising their own children.
In any event, my opposition doesn't extend beyond my own state. I have no desire to attempt to convince people in other communities to share my norms, values or opinions. All I really want is to ensure that, if the state is going to insist on intruding upon matters of tradition that have always (until very recently) been the province of religion, that it do so in a democratic way, rather than through executive order or judicial fiat, and that the moral diversity of the nation be respected by allowing each state to find its own way.
Another solution that I would have been happy with would be to see government get out of the marriage business altogether and allow religions to define it as they see fit. Oklahoma was already moving in that direction, although there was a certain paradoxical resistance on the party of the gay community. However, that initiative now appears to be moot.
Two questions remain: do proponents of gay marriage have legitimate grievances, and it is correct to discriminate against gays in this (or any) regard?
Let's deal with the second question first, as it's more fundamental. The answer, of course, is yes and no. No in the sense that nobody should ever, for any reason, be discriminated against in a civil rights context. We all have the same rights. We have the right to be born, to participate in the market, to accumulate property, to participate in the political process, to defend ourselves, to pursue our own ideology. Discrimination, in the context of rights, is absolutely forbidden. On the other hand, the answer is also Yes in that privilege always discriminates. There are always rules for membership in any group, whether the group be your nation, your community, your social club, your circle of friends, or your religion. Marriage, as we have seen, has always been a privilege. And those authorities who offer marriage to their members have always imposed membership requirements. Discrimination, in the context of privileges, is mandatory.
And this brings us to the other question. People in the LGBT community have long complained about their "dignity" and asserted that it's not right to make them feel as though they're second-class citizens. And I fully agree. Although I'm not certain there's a civil right to "feel dignity," I can find no obligation this imposes on anybody else, so it would at least appear to meet the qualification of a negative right. In any event, gays have no less right to enter into contracts, participate in mutual association, and own property in joint than anybody else does. And after having engaged in debate on the subject for a number of years, I find that these are the real goals of many gay activists. The sanctity of marriage isn't a major concern; in fact, some have openly admitted that they see marriage as an institution to be destroyed altogether, and that agitating for gay marriage is simply a step in that direction. (If nothing else, this fuels conservatives' arguments that progressives are simply hell-bent on destroying the pillars of civilization, and at least in this case, I tend to agree.)
I want to be clear on this: gays should be able to cohabitate, share common property, and enjoy the same legal privileges that straights do, with respect to hospital visitation rights, inheritance of joint property, and so on. The only reasonable limit I see to this proposition is the tax breaks that government issues to couples as an incentive for raising children.
However, marriage itself isn't required in order to provide these benefits. Civil unions have been permitted in several states for years, and these allow same-sex couples to operate, legally, under essentially the same status as married couples, without intruding upon the tradition of marriage itself.
Up until yesterday's decision, I regarded civil unions as a much more achievable goal in all 50 states than gay marriage, and urged people to agitate on behalf of this arrangement instead.
Even so, there are activists who bristle at the fact that the label "marriage" would be applied to one arrangement and not the other. These are the culture warriors who simply see "second class citizen" applied in any case where different labels are applied, even if the outcome is the same.
And to those people, my response is, "I don't particularly care." You don't have any greater justification in pushing your way into a religious-traditional structure than the state did in the first place. Government isn't here to make you happy. It is here to protect rights. You have no civil right to not be offended (because we do have a civil right to speak freely, and an anti-offense civil right would impose the obligation on everybody to curtail their speech).
That's pretty much my position. Much has already been said on the unintended consequences of the decision, such as the fact that it justifies the implementation of concealed-carry laws in all states that don't currently have them. Another very real prospect is the fact that now more people--some 4% of the population, at least--are now eligible for marriage throughout the nation, and these people will now also be eligible for the tax breaks afforded married couples. If we assume that a significant portion of this population will in fact become married, then it will result in a commensurate reduction in tax revenues.
I'm not sure liberals saw that one coming. If they did, they will likely have two possible responses ready: either eliminate those tax breaks altogether, or find a way of increasing the tax burden on everybody else.
One more spectre looms on the horizon: forcing clergy to provide marriage services outside of their beliefs. A lawsuit has already been filed in Great Britain to accomplish this, and with that precedent having been established, it may be only a matter of time before it happens here.
Whither then, religious freedom?
