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Why We Lost; What We Lost
Yesterday’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.
Published in General, Law
Thelonious
“It’s a whole new ballgame, kids!!!”
Unfortunately, it’s the same old ballgame, the one that began in 1954, in “Brown v Board of Education.”
Same “stigma.” Same junk science. Same usurpation of local control by the unelected who didn’t like the way things were and didn’t want to wait for the people to change.
Sorry.
This, to me, was the most important step on the road to gay marriage. Once it became established that the color of your skin and your sexual preference were equivalent things, then this day was bound to come.
Trying to argue that they are fundamentally different, was, itself, bigotry. But creating a protected class based on a sexual preference is absolutely ridiculous, and always has been.
So it had to be jammed into the public consciousness that there was no difference between objections to gay marriage and objections to interracial marriage. And it worked.
The fundamental transformation has only just begun.
Man w Ax, Roberts needs to be understood by his intention of bending over backward to find any way to interpret a a law so that it fits with The Constitution. He doesn’t like overturning laws. Not Obamacare, not state marriage laws. That’s not a liberal or progressive approach, even if it sometimes results in a liberal law being upheld.
(((The SSM crowd won because they lawyered up. ))).
Lawyering up didn’t get them a half of a percent of public approval.
LOL!!! You certainly are reaching for the hyperbole aren’t you. There are certain realities that this past week of SCOTUS rulings has revealed and one of those is that the plain language of laws and the Constitution does not matter–in the case of homosexual marriage it was find words that did not exist. When the words of the rule book are no longer concrete you no longer live in a free society. What good is the rule book if people can just make things up on the fly as they go along? From now on, in the United States, he/she who has the power has the right. The Constitution no longer matters.
The GOAL here is that you will be made to care or we will punish you.
If you believe in an all powerful central government, who knows better than the people, then these are the steps to accomplish the fait accompli, you will be driven before the state and no longer allowed to drive.
Judicial fiat solves all problems and our congress hides so they won’t be accountable, so we get what we paid for.
So how do you explain him accomplishing this by IGNORING what the law says? I understand not wanting to “correct the mistakes of the legislature,” but for crying out loud this cannot mean that he is correct to turn the other way when the government blatantly ignores what the laws they write and sign say.
Their agenda is to turn us into Europe. Their agenda is to completely eradicate the bourgeoise Middle Class. Their agenda is to create as much dependency on them as possible for things like health care, college education, housing, and nourishment while you have just enough disposable income to go to a ball game every now and then and maybe buy a nice TV, all so you don’t know that you are being tyrannized. They are deliberately driving up costs of living in a free society so that you move out of the burbs or rural areas and into cities, give up your dreams of owning a car and a house, and just become a drone going to and from work with the exception of the three week holiday you take in August–just like Europe. All this while they fly back and forth between their New England cottages, Aspen ski cabins, and Caribbean resorts. Like I said, if you are not part of the government machine making your living, then you will ground into grist by the mill.
Ray Kujawa
“Progressives are understandably eager to use the state as an instrument of cultural oppression.”
Would that conservatives and traditionalists were as well.
(Before you leap to your keyboard, please remember that what you term “cultural oppression” is to me more precisely described as “cultural dominance.” And isn’t that what you really want, for our values to prevail? I do and I vote for people who will help to create and maintain the society I find congenial.)
Tom, your closing sentence is wrenching and true.
What does public approval have to do with it? They didn’t try any public referendums or try to legislate any new laws overturning existing laws against SSM. Yes, SSM has become the cause dejour the last years and I agree they’ve had success in changing peoples mind but in the end it was judges who overturned these laws not the people or the legislatures.
I think we certainly get accused of being liable to. However, I think we are too much lovers of liberty to resort to that. The left would likely attempt to counter with historical examples that wouldn’t fly today.
The font of conservatism is Classical Liberalism. I think the left falsely projects a supposed intent of conservatives to dominate gays by saying ‘of course they hate gays, isn’t that obvious?’ I would be careful of buying into that canard. It’s used like allegations of racism — ‘racism exists and is to blame for everything bad that happens to black,’ even though the it has been rooted out of the laws and very few still have those feelings today.
I think the SSM debate is over. Views on abortion do not seem to be generation-dependent, and as time has gone by more and more people, through advances in modern medicine and technology, see it as the barbarism it is. Some polls that I have seen suggest the young are becoming more pro-life as well. The SSM debate seems much more generational to me. That is, once those over age 50 like me die off, I cannot envision anyone carrying the torch for traditional marriage. It will be interesting to see how this affects traditional churches who refuse to perform same-sex marriages.r />
. How long before Muslims demand a right to polygamy? How will it affect children to be raised by same-sex couple, with neither parent of their own or opposite sex? We are entering a brave new world. Interesting times. Buckley famously said it was the job of conservatives to athwart history yelling stop! We can’t even get history to obey the speed limit!
I don’t think your pessimism is justified. First of all, it’s conservatives who have kids. Then too, those kids who are produced for the pleasure of adults in third party reproduction–do you think they are all going to grow up all happy about how they were brought into the world? Then some of the kids of lefties will be wanting to find their own way. We’re the counterculture now–we’ll get some of them. Basically, this is all based on a lie about humans and how they biologically reproduce. Lies have a way of not wearing well over time.
Good points, Merina. Hope you are right, and I hope I am wrong. Tough week on the whole for our side.
In a sense he did “overturn” the law in the 2nd Obamacare case. The law said “X” and he interpreted it to say “X and Y.” So now we have a different law than the one enacted by Congress. In doing so he gave weight to the progressive notion that words in laws have no objective meaning. They mean what the majority of justices want them to mean. This was a case in which the current Congress, with Republican majorities in both houses, actually supports the opposite position from that of the administration. Roberts gave the administration his support. In truth, even the Democratic Congress that wrote the law knew that it was writing “X” and did not intend to write “X and Y.” He overturned what they wrote.
In the first Obamacare case he was willing to go along with the notion that there are limits to the commerce power, but then he came up with a theory that removes those very limits, namely, that Congress has the power to tax people for refusing to do something that Congress doesn’t have the power to make them do in the first place.
This is also part of the progressive agenda, i.e., expanding the power of the federal government.
Maine.
I remember it!
Rome, American style.
I’m convinced the “stunning change” you saw in public opinion in the last few years on the homosexual marriage question was due in a great part to a combination of fatalism and fear; fatalism that governments, and especially, judges, were going to rule this way no matter what happened, and oh well I’d better get on the winning side because we’ve lost anyway, and fear because of very real examples like Brendan Eich.
This week has gone a long way towards convincing people that, through no fault of their own, this isn’t their country anymore. They just live here and are subject to the whims of others.
Mr. Garrett ably describes many of the elements which contributed to the Progressives’ success in this individual campaign. He makes a crucial mistake, however, when he conflates deciding on the kind of society we want with electing the representatives we want to govern us.
This can be best understood by remembering that the United States used to be a Christian nation with a secular government.
We live in a “progressive” society now. Progressives now set the rules. That is the spoil of winning the Culture War. Ignore that, say or do something that goes against the progressive rules, and you may lose your livelihood, your company and certainly your status.
Too many folks born 1945 to 1965, especially today’s conservatives, are still trapped in the fantasy of “Do your own thing,” that as long as you don’t hurt anyone else, it’s OK.
This is a delusion. It breeds so-called conservatives who say things like, “If Tom and Dick want to get married, so what? That doesn’t affect MY marriage.” It results in so-called conservatives who strive to achieve power, but who then shrink from using that power. It results in libertarians, who just want to be left alone and don’t understand that that has never happened and will never happen.
This new elite – call it the unAmericans – is now engaged in getting this society’s collective mind right. They have power and they are happy to use it – for your own good.
Ray Kujawa: “I think the left falsely projects a supposed intent of conservatives to dominate gays…”
So it’s projection, eh?
You think the Left actually wants to dominate gays.
Kinky.
Sorry but if we should have learned anything, is that these sort of arguments don’t resonate and don’t work. Definition of marriage, thousand years institutions etc. None of those things actually matter. And they don’t matter because legally this isn’t even the argument.
Is the tax status of married couples a “thousand year institution”, or in the Bible? I haven’t read it there.
Marriage, as a government institution, which it is, is a recent and ever changing institution. New laws and regulations are passed every day on what benefits, costs, responsibilities, tax status etc are associated with this…piece of government license.
How can we pretend that we’re speaking of the same institution from 1,000s of years ago, when we invent and change this stuff on a daily basis?
This isn’t a serious position. The only serious “conservative” position is to say: get the government out of issuing licenses and defining benefits for particular types of relationships. But if you do that, be prepared to have the 1 million pages of rules created in the last 50 years…disappear.
This is a piece of government issued license. It’s a government granted tax status.
The argument as to whether this should have been decided at the State level through ballots or by SCOTUS, is a separate one, and a valid one.
But the “trillion year institution” argument isn’t. That is not what a government license is.
I’ll admit I only skimmed the thread, so forgive me if someone has already pointed this out, but I think academia gets more of the “credit” than the media. The same-sex revolution of the past ten years would never have happened without the work of the academy over the past thirty-plus years.
WHY WE LOST
First feminism rode on the coattails of the struggle for black civil rights and achieved “privileged” status in the U.S. Then gay rights did the same, beginning with Stonewall.
The handicapped as a victimized group followed soon after, right behind the newly-minted ethnicity of “Hispanic.” They too claimed black-like oppression and similarly demanded and received affirmative government action, set-asides, programs by the score and quotas in everything but name.
Most recently illegal immigrants to America have donned the capacious black robe of discrimination. People who stole into this country uninvited defiantly proclaim that we American citizens owe them.
(Ann Coulter to young Central American male complaining about racism: “Stop it. You’re not black.”)
For decades, ever since the Bakke decision, white Americans have consoled themselves that charges of “Racism!” will soon become ineffective, and that like the boy who cried wolf pretty soon the magic word will lose its power.
But instead today the word carries more dynamite in it than ever.
Shelby Steele calls it “Shame” and “White Guilt.” The late Lawrence Auster said we treat black people like “sacred objects.”
Politically, I’m sick and tired of blacks, of their brain-dead voting (96% of black women, 8% of the 2012 electorate, voted for Obama), their disgraceful representatives, their endless whining, and their inability to solve their own problems. I give them as much special consideration as I do Filipino-Americans, plumbers or Mormons.
What about you?
What you morons don’t understand is that we just need to sit on our thumbs and await more elections.
Sorry, but this “we lost” stuff is overly fatalistic. This isn’t a football game where the teams have direct control over the outcome, and only the score at the end matters. Nor, IMO, is it a zero-sum cultural game where there have to be “losers” when there are “winners.” One “loses” when one compromises one’s principles. Anybody done that?
Way to completely, insultingly, infantilize the serious folks. You seem to reside in the strange donut hole of seriousness where politics is fun and goes on forever, without consequence. Do you have such a faith in the state to believe that it cannot end? Are you so limited in your vision that the Constitution which existed before you were born must therefore also exist after you die?
Your sanguinity is bad enough — your condescension is the real kick.
Resistance must begin by refusing to let language be distorted. There can never be such a thing as “gay marriage”. Whatever law, company policy, school policy, or anything else demands, acknowledge the arrangement with “gay union” or such… but never “marriage”.
Justice begins with truth.