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.

Published in General, Law
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  1. Kate Braestrup Member
    Kate Braestrup

    Ball Diamond Ball:There is an argument implicit in your little stories, and it is dishonest to pretend otherwise.

    An argument is not an insult. Nor is a story. But I’m going to leave this room now so you can clench your little fist and punch your little pillow without any dishonest mean girls  judging you.  Nighty night.

    • #91
  2. Ball Diamond Ball Inactive
    Ball Diamond Ball

    I am not concerned that there are divisions which we will not bridge. We just intend not to lose so much.
    There are deep divisions which are not about conclusions, but about core beliefs. It is tiresome to be hounded about conclusions only to have the points made about basic holdings ignored.
    These things are irreconcilable, we are different communities, conservatives and “moderates”. You say that an argument is not an insult. Really?
    [Redacted for CoC]
    Those are all insulting arguments because they, like your presumption of ignorance, are predicated upon pretty unpleasant views of your one’s correspondent.

    • #92
  3. Ricochet Editor's Desk Editor
    Ricochet Editor's Desk

    Ball Diamond Ball ~

    You have repeatedly been asked in recent days to rein in your combative tone on several threads. We realize things get heated sometimes and we try to give people a chance to self-regulate. Thus far, you seem to be abusing that indulgence.

    Ricochet exists to foster a civil conversation. You have consistently fallen short of that standard over the past several days. If you’re unable to participate in certain conversations without getting heated, we suggest that you limit yourself to less combustible topics or perhaps take a brief hiatus from commenting altogether. We never like to take disciplinary actions against members, but we start running out of options when they ignore nudges from the editorial staff.

    Tighten it up, please.

    • #93
  4. Ball Diamond Ball Inactive
    Ball Diamond Ball

    Point taken and I appreciate the yellow card.  Just addressing the immediate topic:

    I think that the context remaining in the comment illustrates that I was consciously and transparently citing examples of arguments which are in fact insulting.

    My purpose, which I think was clear, was to refute the claim that “an argument is not an insult”.

    You say that an argument is not an insult. Really?
    [Redacted for CoC]
    Those are all insulting arguments because they, like your presumption of ignorance, are predicated upon pretty unpleasant views of […] one’s correspondent.

    Obviously, what gets redacted is up to you, but I don’t want anybody to walk away thinking I was hurling those insulting arguments.  They were examples, and I feel the context bears that out at least in retrospect, if not at first reading.

    • #94
  5. Kate Braestrup Member
    Kate Braestrup

    BDB—I don’t have unpleasant views of my correspondent in this case. (Well, okay, I did last night because I was irritated with you, but that doesn’t last.) I really wasn’t trying to provoke you originally—but never mind, I was definitely  “combative” at the end.  I’ll take half your yellow card.

    • #95
  6. Kate Braestrup Member
    Kate Braestrup

    Oh—and I “got” that the [redacted] remarks were examples, not actual insults.

    • #96
  7. Ball Diamond Ball Inactive
    Ball Diamond Ball

    Thank you, Ma’am.  I’ll certainly own my yellow card — hard work should be rewarded.  I am relieved that you didn’t take the example insults as directed toward you (or anybody).  I don’t like throwing elbows by accident. :-)

    Very gracious of you to chime in.  Thanks again.

    • #97
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