The latest Supreme Court unconstitutional decisions on Obamacare, and especially gay/same sex marriage, rendered at the end of its 2015 term, represents the usual mishmash of left-oriented judicial activism, rhetorical “jiggery-pokery” (a term I first heard on Dr. Who, but here used by a flustered Justice Antonin Scalia in his heated dissents), and other basic breaches of rational jurisprudence. Once again, at least from this Christian libertarian’s perspective, rulings that involve (at minimum) severe and unprecedented re-inventions of constitutional understanding, have been resorted to in order to impose a one size fits all “politically correct” solution on a divided country.
Court Overreach, Liberty Conflations
This overreach confirms the impression of many that the current court is staffed by the Devil’s favorite demons, to borrow a WWE line, determined to hasten the slide of the society and nation into lawless and amoral chaos. But if this has been the trend for years, why does yet another year ending with laughably flawed decisions count as breaking news, some would ask? The answer: It matters in terms of the long standing, but broken promise of the Republicans to fix the activism problem with constitutionally sound Justices. They’ve had 35+ years, and 4 of the 7 appointees they delivered have turned out to be totally compromised (with Roberts seemingly under out and out blackmail when it comes to Obamacare). Meanwhile, on every big ruling, there has been no deviation by the Democratic appointees whatsoever from furthering the activist agenda.
Kennedy appears to have been bought off since at least ’92 (when he initially ruled to overturn Roe in the Casey decision, making him the 5th vote after oral arguments, then magically flipped by the day the ruling was announced). This last minute flip has happened only 3 times in the last three decades (O’Connor with Webster, Kennedy with Casey, and Roberts with Obamacare), in each case by a GOP selected “conservative.” As with the politicians, until the one way cave-in syndrome and compromise stops, there is no remedy to or relief from the ongoing SCOTUS slide into PC tyranny.
Libertarians have supported the freedom of gays to exercise personal liberty as a matter of tolerance, and leaving people alone. The key unifying point is that homosexuality is personal behavior that is not bothering other human beings, and as such does not need to be a concern of the state. This comes down to being a neutral “social libertarian” approach to their behavior that neither presumes “they are sinners” who must be shunned (the social right dogma), or that “they’re born that way” and must be embraced or approved, and hold civil rights class status (the social left dogma).
Some libertarians have wrongly conflated the social libertarian view with social liberalism. Many such libertarians, having come from a “Democratic liberal” or “moderate Republican” background, equate the liberty diversity approach (tolerate it and protect personal liberty) with social liberal advocacy (approve, embrace and promote it). This has in turn led to many unfortunate campaigns to “recruit” social liberals through issues like marriage equality. These efforts have failed for the same reason they usually fail to persuade social conservatives—both the right and the left are usually authoritarians, who want to impose their views and disputed presumptions (through law or through the courts) on everybody else. In terms of the current crusade, gay advocates do not want to live and let live, they want state enforced legitimacy, and the power to marginalize and punish the social right.
What’s the Issue?
Let’s concentrate on the gay marriage decision to get to the heart of the problem. Exactly why is it alright to the left for a federal edict and one Justice (Kennedy, who has written the last three gay-related decisions) to govern the approach of 350 million Americans from diverse states? More pertinently, how is this acceptable to libertarians, who supposedly believe in getting government out of divisive areas of life— except of course, for left-leaning federal decisions it likes? Neither a federal law like DOMA, nor a constitutional amendment, nor a Supreme Court decision should be defining marriage for the entire country, in either a traditional nor modernist direction.
Nothing in the original intent of the 14th Amendment guarantees a right to marry, be it heterosexual or homosexual, making the question of what is or is not allowed state to state moot. At the time of the amendment’s passage, marriage itself was understood to be a private institution or sectarian ritual, much like baptism or communion, thus not a matter of law. And the 14th amendment protects individual rights, not the privilege claims of a group that they need to be treated as a protected class. Gay advocates want a government privilege (a government marriage license) extended to them as a group as if it was an inalienable right, based on collectivist claims of being a civil rights category (which is itself disputed, since half of us do not agree “they are born that way”).
Regardless of the above reasonable considerations, gay marriage advocates have tried to pack their disputed presumptions into the law, and into the framework of the public dialogue on the subject. The gay lobby has spent billions in marketing to re-characterize immorality as a variety of civil rights, in order to get people to buy into the normalization, including marginalizing opponents as “bigots” or “homophobic” (not a DSM defined psych term, but a put-down epithet designed to chill debate). A full court press effort of over a decade has resulted in the current court decision, that has apparently succeeded in intimidating pols, pundits and justices alike into compliance with the “correct” view.
If you doubt there has been propaganda going on, ask yourself 1) why, in one news story after another, there’s always video shown of gays celebrating or kissing when they get a victory, but no video showing religious conservatives celebrating when they win? 2) If you replaced all the known gay news figures, gay actors and gay-friendly situations shown in current movies and TV shows with conservative evangelicals and Catholics, wouldn’t it seem obvious the media was over-stacking viewers with social conservatives? So if that’s the case, why is it okay to saturate the viewers by over-representing gays?
Benefit, insurance and other support issues involved with alternate relationships should be resolved through private contract. Gays should be free to identify such a contractual bond as ‘marriage’ but people should also not be forced by the state to recognize it as such. Gays can do whatever they want and can call it whatever they want, just so they don’t expect to impose their relationship on someone else. They can’t make me personally accept what they do, and gay couples can do whatever they want.
I regard much rhetoric about ‘rights’ in politics to be illegitimate, and often simply a pretext for demanding group privileges or subsidies that increase overall state aggression, in a manner that comes at the expense of the real liberty rights of others. I support individual personal liberty in sexual matters, but oppose efforts to further expand group rights by using government to codify legitimacy or approval for behavior that remains highly disputed. Initiating force through laws that de-facto coerce people to accepting behavior they see as immoral, is not the way to solve this, or other social issues.
Last but not least, the traditional and preponderant understanding of marriage is that it is a union God sanctifies and consecrates, or makes holy, for His glory–which is why the ceremony is most often done at a place of worship, and conducted by a cleric. That same historic tradition understands that homosexuality is sin, or a form of sexual immorality. Since it is impossible for God to make sin holy, to believers, the entire concept of same sex marriage is at least impossible, and at worst an attempt to ‘demand’ that God consecrate something that is immoral, or patently contrary to His law. This principled commitment to the sanctity of marriage is why cultural traditionalists reject the idea of gay marriage, not hatred.
The issue is not private contracts, or recognizing man’s love for man’s sake, but government conferring false legitimacy to a version of a private institution (and imposed on everybody) that runs contrary to the preponderant understanding of that private institution. Are gay baptisms or communions valid, if somebody gets a government license saying they are? The government does not have the right to treat a government marriage license (a privilege, that is dependent on the state’s approval) as if it is a right (something human beings have that is recognized to derive from outside, or beyond the state).
Nor should the state have the power to use its issuance of a privilege (a license) to fraudulently convey or curry legitimacy for gay marriages that could not be obtained by the culture or history. The decision this week confuses or conflates individual rights with group privileges, and is in essence a back door statement that the state recognizes no source or authority for rights outside of itself.
Culture Wars 2.0
At the moment, I see there are two clarifying strategic considerations for true advocates of liberty, here understood to be inclusive of cultural tradition:
1) The culture wars are geared to go into 2.0 mode, as the PC side will (as they did following Roe) presume this latest imposition of social liberal concepts on a divided country “settles the matter”–only to find it fuels divisive elections for the next several decades, as abortion has. The best overall approach, given the current circumstances, is to elect more constitutionalists to Congress who will use their direct powers to vote to remove the court’s jurisdiction on gay marriage, abortion and other cultural wedge issues, which would vacate the bad decisions made in each area, thus de-federalizing these issues.
2) This further exposes the complete failure of the Republican Party’s cowardly, half-hearted strategy of waiting for vacancies in the Supreme Court to appoint conservative replacements. For 40 years the GOP has strung the social right out with promising to reform the courts in this manner, while not prioritizing putting reliable appointees to the Court (compared to the perfect record of Democratic administrations in appointing social liberals). It’s clearly time to abandon this as a primary method going forward. (As an aside, I think it’s also time Republicans stopped running for President leading with an emphasis on interventionist foreign policy, which I believe cost them the election in ’92, ’96 and since ’08, and thus cost them more chances to make court appointments, but that’s another issue.)
Reagan appointed O’Connor and Kennedy, GHWB appointed Souter, GWB appointed Roberts, meaning 4 out of the 7 GOP appointees to SC have been duds, since 1980. Their failed approach has only emboldened the left to continue to pack the courts in the other direction, and continue to impose a left-authoritarian agenda through the courts and bureaucracies. The federal government should be out of these issues on both the legislative and judicial sides, so a successful removal of the court’s jurisdiction would send a stinging warning to the justices to not overreach their constitutional boundaries, as they have just done with these current decisions.
Rand’s New Mousetrap
GOP presidential candidate Rand Paul has written an amazing editorial for Time on the court’s gay marriage decision that suggests this exact path for getting the government out of marriage, and for giving cultural traditionalists the principled high ground on the moral issues without resorting to authoritarian measures (more laws, regulations, court decrees and other initiations of force) to counter the PC authoritarians of the social left. His approach mousetraps both the right and left’s self-contradictory attempts to settle the matter on the federal level in the first place:
…While I disagree with Supreme Court’s redefinition of marriage, I believe that all Americans have the right to contract.
The constitution is silent on the question of marriage because marriage has always been a local issue. Our founding fathers went to the local courthouse to be married, not to Washington, DC.
I’ve often said I don’t want my guns or my marriage registered in Washington.
Those who disagree with the recent Supreme Court ruling argue that the court should not overturn the will of legislative majorities. Those who favor the Supreme Court ruling argue that the 14th amendment protects rights from legislative majorities.
Do consenting adults have a right to contract with other consenting adults? Supporters of the Supreme Court’s decision argue yes but they argue no when it comes to economic liberties, such as contracts regarding wages.
It seems some rights are more equal than others…
Perhaps the time has come to examine whether or not governmental recognition of marriage is a good idea, for either party.
These remarks would be consistent with a three part approach of 1. Calling for eliminating marriage licenses. 2. Calling for defending religious liberty. 3. Removing jurisdiction of the federal courts concerning abortion and homosexuality, which would have the effect of vacating all of their unconstitutional rulings of the last generation to impose social liberalism on a largely conservative country. Some states, like Mississippi, are already considering ending their issuance of ALL marriage licenses. Rand himself may or may not openly champion all of these specific remedies, but he has opened up a specifically pro-liberty plan for the non-PC side of the culture wars to take up. That plan is, simply: restore morality, by removing government from all these areas.
In terms of how this plays into his primary chances, Rand could shave some votes off the statist social conservatives if the pro-liberty side did not appear to be stone-faced aloof, or outright hostile to moral issues. Just because we want to avoid getting sidetracked by wedge issues, doesn’t mean there is NO connection between moral decline and the loss of liberty. A culture that allows the legal slaughter of the unborn, for example, shouldn’t be surprised that not long after, it sees its government allow torture, rendition, no-due-process detention, and drone assassinations of civilians as well.
While standard or hack social right pols don’t acknowledge these connections, they do bring up the relevance morality has as a partial explanation to our general blight. The voting bloc that can be culled by doing so can also be mined by Rand and the movement, but liberty advocates need to lose the wholesale contemptuous attitude towards those voters in order to win over a faction of them.
The Road Ahead
In general, Rand’s op-ed is the guide for getting the social right onboard with fighting for their agenda on a non-authoritarian basis. Central (especially federal) government encroachment on private or local matters is the problem. Cultural conservatives have missed this by trying to lock state force in their direction, and hitching their wagon for decades to a GOP leadership that, as is now plainly obvious, was never trying to deliver for them on these issues. At this point, they should realize that the social left authoritarians are much better at getting state force to go their way, and the “waiting for the Supremes” or new judicial appointments to save the day game has run its course.
With the SCOTUS path seemingly blocked off to them now on both abortion and homosexuality, they now need to embrace the libertarian path of stripping the federal government of jurisdiction on these issues, and dumping the pols, Republican or Democrat, who won’t stay in line. They also need to back away from the rigid partisan thinking that isolates the Christian right in the GOP from those in the Democratic party (in other words, bring back the landslides of the Reagan years, where the less-government candidate united the social conservatives of both parties behind him).
That faction in the Democratic party still exists, as demonstrated as recently as a few years ago in CA, where most black voters rejected gay marriage by referendum and caused its defeat in that state. This cross-party re-unification of the cultural right is one of the things the elite fear the most, which is why they so quickly moved to co-opt the Tea Party within the GOP, and why they have boxed or blacked out any candidate who could have revived the Reagan coalition, from Buchanan to Ron Paul. If Rand leads them along the new strategy of de-federalizing the issues, the more thoughtful of them may realize they have no other place to go than the liberty route to make progress going forward.
Time Horizons and the Poker Face
For those fellow Christian libertarians who feel disheartened by the events of recent weeks, think on this: My metaphor is, we’re in the middle of one of the Rambo movies, where the triumphalist establishment figure says “Rambo’s done, it’s over. He lost.” Rambo here stands for liberty, the Constitution and cultural tradition. What we need to do is maintain our Col. Trautman poker face, and while conceding things do look bad, quietly suspect a turnaround will happen.
The last time they told us “Rambo” was done, was after the Sandy Hook shootings, as the cheerful gun control freaks chortled over how many legislative goodies they were going to get from riding that tragedy to victory. Three years later, no victory, since Americans loaded up buying more guns, residents of even liberal states like NY are not complying with gun control laws, and the Tea Party and liberty people in Congress have beat back the gun control drumbeat. The PC crowd is cheering over the ‘bring down the Confederate flag’ and ‘impose gay marriage acceptance on all’ victories now, but will they be laughing after the next elections?
That’s the longer time horizon we have to have. The statist and cultural PC forces always presume their winning a battle means they’ve won the war, when all it actually means is, we’re at the end of a round. Then when they get blown out at the last two mid-term elections, they turn to us flustered and say, “you knew, you KNEW Rambo would come back!” That’s when we get to have a little victory and reply, “I suspected.” The battle continues, but I say, liberty will come back from this.