Why We Lost; What We Lost

 

ConstitutionYesterday’s ruling in Obergefell v. Hodges represents the culmination of a perfectly executed public relations campaign.

In a purely pragmatic sense, it’s difficult not to be impressed by what this activist-driven effort accomplished—I mean in real terms, not the unserious victory slogans of the campaign itself.

In no particular order, it:

1. Successfully and fundamentally transformed the definition of “marriage,” and did so in a way that portrayed efforts to preserve traditional marriage as the novelty, rather than the millennia-old status quo.

2. Successfully convinced a critical mass of the public that there is only one side in this debate, despite the fact that the side claiming the monopoly had only existed in any meaningful form for perhaps 20 years.

3. Successfully convinced a critical mass of the public that race and sexual orientation are directly analogous.

4. Successfully convinced a critical mass of the public (and jurists) that there is no possible argument against gay marriage—to the point where federal judges found that not permitting same-sex marriage is definitionally irrational, and had prominent left-leaning outlets calling yesterday’s dissents simply “crazy.”

5. Successfully branded opponents as simple “bigots” for daring to hold a different view on a live political issue, going so far as to take punitive action against those who did not adopt the “correct” viewpoint.

6. Successfully portrayed the battle as, literally, love versus hate.

7. Successfully accomplished all of the above in about a decade.

My God, the magnitude of it is staggering.

Agree or disagree with the result, the sheer, total dominance with which the opposition was dealt defeat after defeat, constantly being depicted as evil and intellectually bankrupt—even when most of the public was still in favor of traditional marriage—is incredible.

How did this happen?

Briefly: narcissism by those terrified of being on the dreaded “wrong side of history,” a relentless emphasis on emotional appeals and feelings as a basis for law, and a tireless media that was the movement’s greatest ally, framing the debate in terms favorable to the non-traditional side.

It’s that last feature that is particularly fascinating.

The great failure of the modern media is its inability to distinguish for its audience between ideological arguments and judicial arguments. Many rank-and-file journos don’t have the requisite skill or education to explain those distinctions. Those who do possess that ability are not particularly inclined to use it, because to do so would undermine the possibility that their preferred outcome would become reality (as it did yesterday).

To most SSM advocates, the “how” didn’t matter. They focused only on ends, not means.

But the means are what make our government special.

Suddenly, people (like me) who said, “You want gay marriage?  Fine. Pass a law,” were seen by some as virtually indistinguishable from members of Fred Phelps’ extended family. Passing laws takes time. And what if some states don’t get on board? Everyone must be made to agree — and now.

Conservatives lost this fight because they could never control that conversation, at least not in the last 10 years. This dominance over the narrative was so total that even the outcome was framed in the wrong terms.

“Supreme Court legalizes gay marriage in all 50 states” is not what happened. What happened was that the Court ruled that it is illegal (unconstitutional, in fact) for any state not to recognize same-sex marriages. That comparison matters a great deal when viewed from a constitutional law perspective.

That lack of precision is typical, and it speaks to why so many Americans don’t grasp the difference between a legislative debate and an argument before the Court.

When you discussed this matter with your pro-SSM friends and you pointed out that the Constitution doesn’t contemplate a right to gay marriage, their response was likely something along the lines of “But it shouldn’t matter whom you love” or “Gay people care and love and feel affection that is just as valid as straight couples” or “Everyone should have the ability to get married.”

Those are all arguments that would be entirely appropriate on the floor of a legislature, or in an op/ed, or in a debate between gubernatorial candidates.

They are also not legal arguments.

That contrast is crucially important. It has been blurred into oblivion, thanks in large part to the unwitting or unwilling media.

And that is one reason why we conservatives lost.

With the populace already accepting the lion’s share of the narrative, the turning point was when activists and media allies convinced much of the public that “Should gay marriage be legal?” and “Is there a right to gay marriage in the Constitution?” were the same question.

They are not.

When I explain to people that I would never burn an American flag, but I understand that the Constitution precludes a law banning same, they usually grasp the dichotomy. When I transport the analogy to abortion, and explain that someone can be pro-choice but admit that Roe is horribly reasoned case law (as several of my liberal law professors did, privately), I start to get confused looks in return.

When I say that someone can be indifferent to gay marriage—or even favor it—but think that there is absolutely no substantive constitutional right to gay marriage, it is at that moment that the pitchforks and torches tend to show up.

But why does that distinction matter so much? Why is it so critical to understand the division between legislative/ideological preferences and the role of the judiciary in interpreting the Constitution?

My position has always been that our nation’s paramount value is not liberty or opportunity or capitalism or hard work or even freedom. All of those obviously matter, but I don’t see them as the one value above all.

No, for me, the value is self-determination.

We decide for ourselves what sort of society we want.

Not the clergy. Not the aristocracy. Not the King of England.

We do. If we don’t like the laws our elected officials give us, we kick them out of office by voting for people who promise different laws. It’s a terrific system, in fact!

There are a few limitations, to be sure. And rightly so. Those limits are the ones enshrined in our Constitution. We cannot validly pass a law that, say, outlaws Catholicism. We cannot validly pass a law that requires government review of newspaper articles before they go to press. We cannot validly pass a law that says only men can vote.

That last one is interesting, because it naturally relates to the 19th Amendment. Mathematicians among you will note that the 19th Amendment guaranteeing women’s suffrage was passed after the 14th Amendment, which included the Equal Protection Clause.

Curious, then, that the 19th Amendment was even necessary, no?

That necessity emanated from the fact that the understanding of constitutional law was quite different then. Today? If you think passing simple legislation is too hard, just think of how tough it is to ratify amendments!

And, so, we “discover” new rights now. Today’s ruling did so, and it was even more remarkable than other, similar cases: Its heavy reliance on factors like loneliness and dignity in legal decision-making was profound. Again, these are fine legislative arguments, but those concepts are not referenced in the Constitution. Neither is marriage, for that matter. At all.

Until very recently, domestic relations law was seen as the bailiwick of the state governments. Although that rule is still paid lip service by the Court today, it pales—and fails—in comparison to the supremacy of elite sensibilities.

With each decision like the one the Court announced yesterday, we chip away a bit at a core element of our national, governmental, and jurisprudential identity.

A nick here, and a cut there, and before you know it we’ve bled to death.

Because what we lose when enough of these decisions accumulate is nothing short of true self-governance.

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  1. user_554634 Moderator
    user_554634
    @MikeRapkoch

    Right.

    • #1
  2. The King Prawn Member
    The King Prawn
    @TheKingPrawn

    I’ll contend with your first point. Today’s ruling didn’t transform the definition of marriage so much as it mopped up what was left of the traditional definition after heterosexuals finished gutting it.

    • #2
  3. Indaba Member
    Indaba
    @

    we have had 10 years of gay marriage in Canada but I only know one gay couple – the lesbians who went to the suprem court to gt two women and a man put on their son’s birth certificate.

    Marriage is in a state of flux for men and women and the lesbian and gay movement managed to be the most enthusiastic about an insitution that is disappearing here in Canada. The government has now had to declare anyone who lives together for more than 18 months married anyway, expensive wedding or not.

    It has become all about the money.

    • #3
  4. Eric Hines Member
    Eric Hines
    @EricHines

    Tom Garrett: the great failure of the modern media is to distinguish for its audience between ideological arguments and judicial arguments.

     No, for me, the value is self-determination. We decide for ourselves what sort of society we want.

    Then on what basis do we blame the modern media–or anyone other than ourselves for this “great failure?”

    This and nearby threads seem to display a shocking degree of defeatism, of it’s all over.  We got a couple of boo-boos in our toes this week, and we’re done.

    Bull.  Defeat is a fame of mind, and this contest, like all contests, will go to the ones with the will.  It’s far from over, and I decline to cede that will or our victory to others.

    Eric Hines

    • #4
  5. tom Member
    tom
    @TomGarrett

    The King Prawn:I’ll contend with your first point. Today’s ruling didn’t transform the definition of marriage so much as it mopped up what was left of the traditional definition after heterosexuals finished gutting it.

    That’s a fair point.  Marriage as a religious, lifelong bond for the primary purpose of procreation and child-rearing began eroding a long time ago.

    • #5
  6. TerMend Member
    TerMend
    @TeresaMendoza

     “. . .We cannot validly pass a law that says only men can vote.

    That last one is interesting, because it naturally relates to the 19th Amendment. Mathematicians among you will note that the 19th Amendment guaranteeing women’s suffrage was passed after the 14th Amendment, which included the Equal Protection Clause.

    Curious, then, that the 19th Amendment was even necessary, no?”

    This, this, THIS!!!

    • #6
  7. tom Member
    tom
    @TomGarrett

    Eric Hines:

    Tom Garrett: the great failure of the modern media is to distinguish for its audience between ideological arguments and judicial arguments.

    No, for me, the value is self-determination. We decide for ourselves what sort of society we want.

    Then on what basis do we blame the modern media–or anyone other than ourselves for this “great failure?”

    This and nearby threads seem to display a shocking degree of defeatism, of it’s all over. We got a couple of boo-boos in our toes this week, and we’re done.

    Bull. Defeat is a fame of mind, and this contest, like all contests, will go to the ones with the will. It’s far from over, and I decline to cede that will or our victory to others.

    Eric Hines

    Of course, we fight on.  But my concern is that there is now a gameplan that is so effective, conservatives will have to get a lot better in order to fight it.

    And, sure, we can say, “Then get better!,” but, here, conservatives had a decade to get better, and they just couldn’t.  Not even when Democratic state AGs unilaterally began deciding to stop defending traditional marriage laws (even absent binding federal precedent), conservatives couldn’t turn the tide against what should have been seen as dereliction of duty.

    Anyway, I never give up.  To be clear.

    • #7
  8. Al Kennedy Member
    Al Kennedy
    @AlKennedy

    Extremely well said post.  Thanks very much.

    • #8
  9. MarciN Member
    MarciN
    @MarciN

    The way I have looked at this as a legal issue is that the problem is actually the Civil Rights Act, which made it unlawful to discriminate against certain types of people. In Massachusetts, gays have a clearly stated protected-class status, which means that they cannot be discriminated against. Whatever privileges are available to certain people, those privileges–renting an apartment, getting hired for a job, and so on–cannot be denied to people based on their religion, sexual orientation, nationality, race, and so on. This was the opening for gay marriage in Massachusetts.

    Whatever rights and privileges are granted to people by the government or anyone else must be granted to everyone equally regardless of those characteristics. And even though sexual orientation is not a protected class per se at the federal level in all things, it is listed as such by the Equal Employment Opportunity Commission.

    The point I’m making is that I don’t think the Supreme Court would have ordered the states to discriminate against people based on sexual orientation in the granting of marriage licenses any more than they would have ordered the states to not grant licenses to blacks or Italians.

    We have needed to fix this legislatively.

    • #9
  10. tom Member
    tom
    @TomGarrett

    Al Kennedy:Extremely well said post. Thanks very much.

    Thank you very much!

    • #10
  11. Ricochet Member
    Ricochet
    @RobertMcReynolds

    Eric Hines:

    Tom Garrett: the great failure of the modern media is to distinguish for its audience between ideological arguments and judicial arguments.

    No, for me, the value is self-determination. We decide for ourselves what sort of society we want.

    Then on what basis do we blame the modern media–or anyone other than ourselves for this “great failure?”

    This and nearby threads seem to display a shocking degree of defeatism, of it’s all over. We got a couple of boo-boos in our toes this week, and we’re done.

    Bull. Defeat is a fame of mind, and this contest, like all contests, will go to the ones with the will. It’s far from over, and I decline to cede that will or our victory to others.

    Eric Hines

    It isn’t just this week.  Liberty has been getting punched in the face for 100 years and there have been only a few times when she protected herself or hit back.  It took us getting to the Obama era for her to finally fall, never to get up again.  The fact that states no longer matter if the Federal government disagrees with what they do means the end of Federalism and means the end of self government.  There is no right to marry for anyone.  It was an idea left to the states and to the people.  SCOTUS just erased the 9th and 10th Amendments to satisfy a hedonistic horde that can’t muster enough votes.

    • #11
  12. tom Member
    tom
    @TomGarrett

    MarciN:The point I’m making is that I don’t think the Supreme Court would have ordered the states to discriminate against people based on sexual orientation in the granting of marriage licenses any more than they would have ordered the states to not grant licenses to blacks or Italians.

    I understand your point, but the problem is that not all types of classifications are treated the same.  This is the entire theory behind the “tiers of scrutiny” we see in Equal Protection Clause cases.

    For example, discrimination based on race is subject to a higher tier of scrutiny than discrimination based on sex.  Thus, it is an easier case to make that sex discrimination is valid under the law.  For instance, the constitutionality of making men, but not women, sign up for Selective Service has been upheld.  Such a law would never be upheld if it made people of Italian descent, but not French descent, sign up.

    The trouble is, sexual orientation, in theory, occupies an even lower rung on the EPC ladder than does sex.  It should have been enough to justify such laws by arguing that opposite-sex couples often face issues that a same-sex couple never could, such as an unexpected pregnancy.

    Yet, court after court rejected the idea that any argument against SSM was even rational.  And, so, here we are.

    • #12
  13. MarciN Member
    MarciN
    @MarciN

    Interesting. I did not realize the courts were allowing discrimination in other areas related to sexual orientation.

    Then that’s the case that should have been made, that the feds have been allowing the states to discriminate in certain situations based on a person’s sexual orientation. I wonder if it was made.

    I haven’t read the justices’ pro-SSM opinions.

    • #13
  14. Ricochet Member
    Ricochet
    @BrianWyneken

    Tom – this was an exceptionally well written post. The point where I differ is the degree of “stagerring.” The “Weber” decision was as bad, yet we endure. So was “Roe.” I realize that your point is the cummulative effect of paper cuts (or greater injuries), but I don’t think this is (I hope that this isn’t) a “Dred Scot” level of provocation.

    By the way, your point on that sense of legacy among the giants – even Justice Taney sought to be on the right side of history – was insightful.

    You’ve demonstrated a talent for recognizing and explaining the danger – please continue your efforts.

    • #14
  15. tom Member
    tom
    @TomGarrett

    MarciN:Interesting. I did not realize the courts were allowing discrimination in other areas related to sexual orientation.

    Then that’s the case that should have been made, that the feds have been allowing the states to discriminate in certain situations based on a person’s sexual orientation. I wonder if it was made.

    I haven’t read the justices’ pro-SSM opinions.

    I should note that, in the wake of today’s decision, all or nearly all of the contexts in which sexual orientation is a basis for different treatment under the law will likely be unconstitutional.  That trend began back in 1996, and marriage, in fact, was sort of seen as the final frontier in terms of what would be permissible discrimination.

    In 1999, even most people who believed sexual orientation should be a protected class for the purposes of employment law or housing law probably thought gay marriage wasn’t required by the Constitution.  Today, sexual orientation is still not a protected class for employment in many jurisdictions, but I would speculate that no state could survive a challenge to a law that didn’t include protections for gays at this point.

    • #15
  16. tom Member
    tom
    @TomGarrett

    Brian Wyneken:Tom – this was an exceptionally well written post. The point where I differ is the degree of “stagerring.” The “Weber” decision was as bad, yet we endure. So was “Roe.”I realize that your point is the cummulative effect of paper cuts (or greater injuries), but I don’t think this is (I hope that this isn’t) a “Dred Scot” level of provocation.

    By the way, your point on that sense of legacy among the giants – even Justice Taney sought to be on the right side of history – was insightful.

    You’ve demonstrated a talent for recognizing and explaining the danger – please continue your efforts.

    First, thank you very much for your kind words.

    As to your initial point—you’re right, and I admit that even I am subject to the pitfalls of overstating the significance of events that are more recent.

    Upon several hours of reflection, I think Roe is undoubtedly still a worse case from a legal reasoning perspective.  I do think it’s interesting, though, that the Supreme Court of four decades ago felt a much greater need to try to connect its ruling to specific provisions of the Constitution, whereas, today, societal norms re: the importance of feelings are such that combining an openly emotional rationale with a dusting of caselaw suffices for many federal jurists.

    Thanks again!

    • #16
  17. user_331141 Member
    user_331141
    @JamieLockett

    Its not possible that those that support SSM hold those beliefs in good faith and because of their convictions? We’re all just a victim of a slick marketing campaign by activists?

    Please.

    • #17
  18. tom Member
    tom
    @TomGarrett

    Jamie Lockett:Its not possible that those that support SSM hold those beliefs in good faith and because of their convictions? We’re all just a victim of a slick marketing campaign by activists?

    Please.

    Of course, people can believe sincerely in SSM.  I did not mean to imply otherwise.  That goes without saying, and I’m not suggesting that anyone who believes in SSM has been hoodwinked somehow.  But the shift in public attitudes is unprecedented in terms of speed and magnitude, and that would not have been possible without structural changes that did not exist in, say, 1975.

    I believe it took a combination of factors to make that switch possible, one of which was a blueprint for winning the war of public opinion, expertly crafted by those at the forefront of the movement.

    I will say, however, that piece that includes conflating legal questions and policy questions is an intentional bit of misinformation (or at least disinformation) designed to accelerate the process even further by producing a ruling like today’s.  Which it did.

    • #18
  19. Fake John Galt Coolidge
    Fake John Galt
    @FakeJohnJaneGalt

    We lost because there was no chance to win. No other option would have been allowed to exist. Now salute the flag, respect the badge. Resistance is futile.

    • #19
  20. Eric Hines Member
    Eric Hines
    @EricHines

    Tom Garrett: conservatives had a decade to get better, and they just couldn’t.

    Failure, like defeat, is a choice.  We didn’t get better, not couldn’t.  We can.  And we will.

    Robert McReynolds: Liberty has been getting punched in the face for 100 years and there have been only a few times when she protected herself or hit back. It took us getting to the Obama era for her to finally fall, never to get up again.

    Or, maybe we should all just cut our wrists, and die.

    Eric Hines

    • #20
  21. Freesmith Member
    Freesmith
    @Freesmith

    I admire the way progressives react to achieving their ends, be it a court endorsement of Obamacare, the nationwide judicial establishment of same-sex marriage, or the delegitimization of the Confederate battle flag. They are triumphant, in-your-face and are not shy about letting their opposition know that they were always right and the opposition was always base.

    No “Let’s all come together now” for the consistent winners of the cultural war. No stupid “Live and let live” either. Those are the attitudes of losers. For victors once you have your enemy on the run, the real fun – the rout – begins. Churches and other traditionalist holdouts are about to find that truth out.

    This, conservatives, is how winners act. Losers ask for mercy – or become libertarians.

    How progressives act when they win explains more than anything why they won and why we always lose.

    • #21
  22. Herbert Woodbery Member
    Herbert Woodbery
    @Herbert

    (((I believe it took a combination of factors to make that switch possible, one of which was a blueprint for winning the war of public opinion, expertly crafted by those at the forefront of the movement.)))

    I think a variety of factors were most certainly involved. Starting with the gay coming out movement being the lynchpin. Once that happened and the rest of society starting seeing gays as neighbors, family members, people in all walks of life. It was inevitable that societal attitude change would lead to changes in the laws meant to punish or restrict gays. Add favorable media treatment, add a overall move in the country towards the idea of autonomy and liberty (or libertine). Finally as for marriage, the opposition to marriage equality had a very difficult time, even to this day saying what the harm of gay marriage would be (at least in the short term).

    • #22
  23. user_656019 Coolidge
    user_656019
    @RayKujawa

    My first thought on seeing today’s headline is, ‘fine, it is illegal now for any state not to recognize same sex marriage; but how does that make it illegal for any private party, social club, venue, denomination or church to decline to offer its services to a party wishing to engage itself to celebrate a same sex wedding?’ By default, any official ceremony could be performed by a justice of the peace, as has been done countless times for heterosexual couples in the past.

    In times past, when a couple does not belong to a church or a denomination, or has no shared denomination, they are free to seek out a private party who is willing to be engaged for that service. I think the key word here is willing, on both sides. It is not the job of the state to compel private parties to engage in supporting functions and services that are ancillary but not essential to the marriage.

    • #23
  24. user_656019 Coolidge
    user_656019
    @RayKujawa

    Freesmith:I admire the way progressives react to achieving their ends, be it a court endorsement of Obamacare, the nationwide judicial establishment of same-sex marriage, or the delegitimization of the Confederate battle flag. They are triumphant, in-your-face and are not shy about letting their opposition know that they were always right and the opposition was always base.

    No “Let’s all come together now” for the consistent winners of the cultural war. No stupid “Live and let live” either. Those are the attitudes of losers. For victors once you have your enemy on the run, the real fun – the rout – begins. Churches and other traditionalist holdouts are about to find that truth out.

    This, conservatives, is how winners act. Losers ask for mercy – or become libertarians.

    How progressives act when they win explains more than anything why they won and why we always lose.

    I think you’ve made a great connection with Progressivism. Progressives will celebrate their supposed excuse to intervene in the culture now, but my last point in #23 is that it is not their job to do so. The state only has the duty to support and recognize the union in its laws and in its courts. Progressives are understandably eager to use the state as an instrument of cultural oppression.

    • #24
  25. user_836033 Member
    user_836033
    @WBob

    Once I was on a date with a girl who did not see eye to eye with me on this issue. I think we were discussing Elton John’s adoption of a child. I expressed concern for the child and about the practice of children being adopted by gay couples generally. She got very agitated, saying it left bad taste in her mouth to hear me talk like that. Eventually it got so bad I could tell there wouldn’t be any more dates with her. So I decided to have some fun. I said “But don’t you know what they do?” … Making it clear I was referring to sexual practices. She got even more upset and asked me to take her home. I later realized it was wrong to provoke her but she’s an example of exactly how the gay rights side achieved its victory. There was a time when people thought of homosexuality as simply a behavior or tendency (which is in fact what it is). But now almost everyone thinks of it as an ethnicity, something completely independent of the behavior that defines it. That is the assumption which allows questions with false premises like “Should gays be able to marry like everyone else?” to be asked at a all. And once the issue can be framed that way, the battle is all but over.

    • #25
  26. Basil Fawlty Member
    Basil Fawlty
    @BasilFawlty

    Your excellent post should be read in conjunction with Jonathan Last’s recent article in The Weekly Standard.

    http://www.weeklystandard.com/articles/you-will-be-assimilated_969581.html

    • #26
  27. thelonious Member
    thelonious
    @thelonious

    The SSM crowd won because they lawyered up.  They didn’t do the hard work of trying to legislate for SSM.  It’s irrelevant what people think about SSM.  Doesn’t matter when a government doesn’t change law thru democratic means.  All that matter is 5 supreme court justices still get invited to all the cool cocktail parties in Washington D.C.  Litigate don’t legislate.  This is the lessen we need to learn.  It’s a whole new ballgame kids!!!

    • #27
  28. Howellis Member
    Howellis
    @ManWiththeAxe

    Progressives don’t care a whit about the Constitution except as a tool to achieve their desired ends. They want homosexual marriage, legalized sodomy, transgender rights, the right to kill babies in utero, socialized medicine, gun control, birthright citizenship, and who knows what else is on their agenda. They are willing to twist the Constitution into a pretzel, to suggest it means things that it was never intended to mean, to read things into it that it in fact doesn’t say, to achieve those ends. No progressive, not a single one, will bemoan the damage done to our constitutional order and to self-government by this decision.

    It would appear that five of the justices, and sometimes six (Roberts in the Obamacare cases) buy into the progressive project. The five also seem not to care about constitutional self-government.

    The only way out of the morass we have created is to appoint a different group of justices who will have the courage to reverse these God-awful precedents, starting with Wickard and Griswold, and go back to a sensible understanding of why we have a constitution and what it is supposed to mean. I hope that I live long enough to see it.

    • #28
  29. ShawnTheBarbarian Member
    ShawnTheBarbarian
    @ShawnTheBarbarian

    Your observation, “Conservatives lost this fight because they could never control that conversation…” is all you need to know about this event. The Left was in the driver’s seat from beginning to end. The Left’s message of, “You are either with us or an ignorant racist bigot” was never successfully challenged and therefore intelligent debate was never allowed.

    • #29
  30. Freesmith Member
    Freesmith
    @Freesmith

    ShawntheBarbarian

    “The Left was in the driver’s seat from beginning to end.”

    The Left understands that

    1. There is a driver’s seat
    2. It’s purpose is to drive the car
    3. It’s fun to drive the car

    Late 20th and early 21st-century conservatives, who still stumble around under the influence of the Sixties, understand none of the above.

    That’s why they won and we lost.

    • #30

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