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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
Say, here’s a link to an interesting comment. I know that some people around here refuse to believe what you say you said without a link.
http://ricochet.com/archives/gruber-has-a-point/comment-page-1/#comment-2693473
Ball Diamond Ball
Words no longer matter. Facts no longer matter. Arguments are pointless. You can be right as much as you like, and they will still shoot you at dawn.
Alinsky speaks power to truth.
Sorry, not editing that any more. The UL/LI problem is worse than most.
First, I wanted to thank everyone for reading and discussing. I really appreciate it.
One point I wanted to respond to specifically was the above—I agree that academia plays a role, but, of the “Holy Trinity” of liberal institutions (academia, media, entertainment), I think academia actually finishes in third place on this particular issue.
When I was in law school in the early 2000s, there was a split among legal academics about the next frontier of marriage. The dominant position appeared briefly to be that governments should stop recognizing marriage in any way (because it discriminated against single or unmarried people). However, once gay people were tied into the issue directly, what became the pro-SSM side lapped the “no more privileges for married people” camp.
Here, academia undeniably had a role. However, I think Hollywood laid more important cultural groundwork by “normalizing” homosexuality, and the media did even more by putting more than a thumb on the scale of any debate involving the topic.
Thanks again for reading.
Boom!
That’s is an interesting retort. I say interesting because the number of states that have actually had some sort of a vote on homosexual marriage, either through referendum or legislature, can be counted on one hand. The rest have voted to ban it or merely bestow upon homosexuals Civil Union status giving them equality within in the law to heterosexuals. Even states out west on the Left coast voted against homosexual marriage. I don’t care what polls say, I doubt the majority of people in the US actually wish there to be homosexual marriage because when they actually get a chance to say so, they do.
In the interest of comity at Ricochet, I’m going to resist the urge to respond in kind (assuming that’s possible). I’ll bow to the opinion of “the serious folks.”
While I appreciate your blah blah whatever, I didn’t appreciate being called an ignorant sports fan, “Hoyacon”, who needs to lighten up. By all means, you who take no great worry from recent developments — keep up the good work.
And in case you missed it, my comment *was* a response in kind. No doubt you disagree, but it’s nothing to get excited about. Nobody’s keeping score. “Losses” are the wrong way to look at it. we can keep commenting until the end of time, and still everything will be alright. No winners, no losers, no insults and no insulted.
It’s not like the law comes out unequivocally and says “only residents of states with exchanges shall be eligible for subsidies.” There is an oblique reference which seems to assume something else is written in the law that is not, Here is a piece in WSJ about it:
http://www.wsj.com/articles/unanswered-health-law-question-so-why-was-it-written-that-way-1435256767
Maybe Roberts was wrong technically, but it wasn’t motivated by liberal admiration for this law.
Sorry, but Roberts again gives th game away in the terrible logic he claims along the way. He could have interpreted this his way without confirming the trend to lawlessness.
He is not just interpreting, but putting constitutional conservatives on notice. We are obsolete.
And here is the man who designed the law:
From whence does this “popular uprising” for SSM come? Certainly not from popular votes, i.e. the Democratic Process. It has been voted on some 32 times and lost definitively at least 30 times. It is the courts and pop culture that have driven this movement directly past the will of the people. Even in California the anti SSM Prop 8 was passed and then overturned by the 9th circuit (whose chief justice was Gay). Watching TV today would make an alien creature believe that 50% of the population was homosexual.
I see Roberts being outcome-oriented in both Obamacare cases.
His doctrine in the first case that the government can enforce through taxation something it lacks the power to do is absurd. He came up with that absurdity only to reach the outcome of protecting the law.
His interpretation of the words in the statute in the 2nd case violates basic principles of statutory interpretation. He goes against the clear intention of Congress to reach the result that the administration wanted.
I understand you to be saying that Roberts didn’t favor these outcomes because he is himself a progressive. Probably true. But he did favor these outcomes because he lacks the courage to follow the law and the Constitution, and he knew that he was furthering the progressive project by reaching these dubious outcomes. By that I mean that he is furthering a government of men and not of law.
Moving beyond all of the legal mumbo jumbo, I wonder what this means in terms of boots on the ground enforcement of this decision. Will the Texas National Guard be called in to force Billy Bob’s Bakery to bake a super sassy cake for Adam and Steve?
I suspect Billy Bob will probably back down, but what about Muhammad’s Bakery? Will the law be enforced without regard to the conscientious objector’s likelihood of engaging in jihad?
Will wedding ceremonies be conducted at gunpoint?
And so it was that a poll taken this year asking people what percentage of the population is homosexual had respondents answering somewhere between 20 and 30 percent.
I appreciate that. It was kind of a big deal. Dirigo, and all that.
Not a retort. Just correcting the record.
Bituminous — Jimenez — whatever!
Funny, common-law marriage is going the way of the dodo in the US.
Yes, yes and yes.
This analysis is spot on.
This is not the way a free society discusses issues. The left’s success on gay marriage is undeniable proof of what I refer to as “politically correct fascism.”
The liberal elite have gained unilateral control of the two most important aspects of public discourse. Media and the classroom.
Public education has been reduced to liberal brainwashing camps and the seeds planted are constantly reinforced by popular culture on multiple levels.
It’s not going to get better any time soon.
Each and every day the last generation of Americans die out and are replaced with egghead twits emerging from pc university.
I’ve been watching this process for about a decade and wanting to scream at the Republican parties inept response to the lefts hijacking of America.
At this point I’m really at a loss for words, I am out of suggestions at this stage in the game.
What we have in gay marriage is a situation where a majority has been passionately convinced of something that is patently absurd. Whats worse is that none of this “delusional majority” has ever even been confronted with any of the real arguments against gay marriage. The dissenting opinion was barred from the arena before the contest even began. Instead the audience was treated to the handpicked bible thumpers who presented the clumsy straw man arguments the left used to define our views.
When enough states legalized SSM, the United States Marine Corps—hardly a bastion of left-liberal, Hollywood-led groupthink?!?!?—began permitting gay and lesbian Marines to travel to SSM states to get hitched.
Ask yourself: Why is Dick Cheney okay with gay marriage? Were Dick Cheney and the Commandant of the USMC persuaded by watching Will & Grace? Or did they just come face-to-face with some actual gay people— not the specter of gay people, not some straw-man story about Adam and Steve (funny how it’s never Eve and Amy…) but the real thing. In Dick’s case, one gay person in particular—his own child. Very few people can remain dogmatic in the face of that particular reality.
You don’t really need a sinister left-wing conspiracy theory to explain this.
Hey, thanks for reducing conservatism to ignorance. I really enjoy the constant name-calling, even in polite terms, even here at Ricochet.
Now you’ll invite me to state my case. Well the case is many times stated and many times forgotten, and there is nowhere that conservatives can even sit a minute and talk amongst ourselves. Every [expletive] conversation turns into justifying our existence. And maybe your 1.2% [expletive] friends can tell you how tiresome that is.
((The dissenting opinion was barred from the arena before the contest even began. ))
The dissenting opinion could never answer questions like .. If marriage is about children why isn’t marriage limited to fertile couples? In a manner that passed the laugh test. That’s what killed their chances. Society realizes it’s more than about propagation.
Before even the Prop 8 debacle, the problem is that this behavior is equated with an immutable characteristic. The road from acceptance of homosexuality to acceptance of pedophilia is a short one. See, the arbitrary expectations of some hopped-up prudes are not sufficient to impede the amorous adventures of those whose foremost concerns are sex, in whatever vessel they find it. Sure, you can say that minors cannot consent, but with the culture now mute on such matters, only a law declares them not capable of consent, and laws are fleeting things.
As Richard Epstein likes to point out, there is no limiting principle. The law is now arbitrary.
First, the USMC is hardly in a position to deny any Marine leave to go where he will within the United States – travel without internal passports is one of those ‘privileges and immunity’ thingies in the US Constitution. (Article IV, Section 2, Clause 1) – Unlike, say the former Soviet Union where internal travel documents were required.
Second, the USMC is also not in any position to refuse to allow any Marine to avail themselves access to civil court in their home state or any other, provided the non-home state permits such use.
To therefore claim the USMC is either opposed to or supports SSM based on your first paragraph is ridiculous.
Third, there is one thing that the USMC is well known for (and rightfully so) – following orders. The DoD was ordered to cease “Don’t Ask, Don’t Tell, Don’t Pursue” and to implement policy to allow homosexual servicemen to serve openly. The branches of the US military complied with those orders.
To further claim that the USMC supports SSM because they choose to follow orders is equally ridiculous.
The DoD resisted permitting gay men and lesbians serving openly for a very long time—long enough, and strenuously enough to make Bill Clinton the president who signed “Don’t Ask Don’t Tell” as a (lousy, counter-productive compromise). That the USMC accepted this change as calmly as it did is surely evidence that the command staff recognized the reality on the ground. My son served with gay men and lesbians. They were there. They were serving.
Incidentally, I think the biggest problem as far as combat readiness and unit morale isn’t having gays and lesbians around—it’s females getting pregnant, which at times during the Iraq war was a huge problem…though not one attributable to the presence of gays and lesbians. Another conversation for another day, when y’all aren’t quite so depressed.
There is an argument implicit in your little stories, and it is dishonest to pretend otherwise.
The argument is that conservative opposition to gay what-not is due to ignorance.
You seem to doubt the existence of this conspiracy, so here’s a link to the article written in 1987 outlining the conspiracy. As far as Will and Grace goes, to quote the article, “As for television and radio, a more elaborate plan may be needed to break the ice. For openers, naturally, we must continue to encourage the appearance of favorable gay characters in films and TV shows. “