The court didn't shut down the debate...yet
We have always been a nation whose government serves by the consent of the governed, with separate and enumerated powers, states’ rights, rule of law and all that. Things have been ‘evolving, in popular parlance. With the Supreme Court rulings on marriage this week, we got a paradigm shift from self-government to ‘the tyranny of the majority,’ though that needs clarification to understand the meaning of “majority”, the way most of the language we’re using these days could benefit from clarification.
So just to recap quickly, John Adams, Alexis de Tocqueville and John Stuart Mill all referred to this term, roughly to mean ‘those who control the levers of power’, in my shorthand translation. Lord Acton put it thus:
The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections. (The History of Freedom in Antiquity, 1877)
It’s apt, as Pope Benedict found it to be in his address to the UN General Assembly in 2008 warning about the consensus of the few in power not necessarily representing what’s best for the people they govern.
Which gets us to this week’s Supreme Court ruling. There is much to unpack here. Some quick picks for first analysis:
NRO editors were succinct.
The Supreme Court declined to rule that every state in the country must recognize same-sex marriage, but do not be fooled. Five justices have taken the position that there is no rationale other than hostility to homosexuals for defining marriage as the union of a man and a woman. When they believe the time is right to issue a more sweeping ruling, they will. This issue will no longer be one on which democratic deliberation is allowed.
There’s the throwdown. They decided a pair of cases, one involving Prop 8 and one involving DOMA. There are reams of commentaries to digest, but here’s a blast of clarity:
Justice Anthony Kennedy, writing for the four Democratic appointees and himself, argues that the motivation for the law was a “bare congressional desire to harm a politically unpopular group.” The Court is not saying merely that supporters of the historic understanding of marriage are wrong, or even merely that this understanding runs afoul of the Constitution (in some unspecified way: As Justice Antonin Scalia’s dissent notes, Kennedy’s opinion is hard to pin down on the question). It is saying that the supporters bring nothing but bigotry to the discussion.
This follows the type of wording Kennedy has used for at least a decade, so it didn’t surprise Court watchers though it dismayed a segment of them.
But here’s an essential point:
The real argument for continuing to treat marriage as the union of a man and a woman is that marriage and marriage law exist to channel sexual behavior in a way that promotes the flourishing of children. They exist, that is, to solve a problem that does not arise in same-sex unions: that heterosexual sex often gives rise to children. They exist to uphold the ideal that children need the mother and father who created them to stay in a stable relationship together. Recognition of same-sex marriage means that the institution is no longer about those things.
That just stated the reasons for marriage law and the State’s interest in it. It also revealed the stark reality that marriage is what the consensus defines it as now.
This, I think, is important:
What should have mattered in court was that weighing that question is not their business. Justice Samuel Alito’s dissent got it right. “Same-sex marriage presents a highly emotional and important question of public policy — but not a difficult question of constitutional law,” he writes. The Constitution is neutral on whether governmental recognition of same-sex marriage will undermine the institution of marriage, strengthen it, or have no effect at all; it does not contemplate the question.