Obergefell, Amendment 8, and Other Cautionary Political Tales

 

Last weekend, Ireland voted in an overwhelming fashion to repeal Amendment 8 of its Constitution, which forbade abortion. As with everything else in our totemized political culture, this has been hailed by those on the left and bitterly lamented on the right. The whole situation gives me the sensation of déjà vu; as if somehow, we’ve been here before and the same script is stuck on repeat in the iPod of our political lives.

That sense of repetition is due to the fact that every time some culturally significant decision arrives, the same cast of characters wheel out their soapboxes to either rend their garments or crow over their supposed enemies’ defeats. The Obergefell decision was one such obvious flashpoint. It is a decision which I disagree with on the legal merits, but one which contains a larger lesson that political conservatives can learn from. Things didn’t have to end up this way.

Let’s start by looking back a couple of decades, specifically the 1990s. In 1995 Newt Gingrich became the newly minted Speaker of the House, with Republicans having just swept into control of both houses of Congress.  They were set to embark on a program of high-minded and ultimately, quite successful political reforms. Conservatives were really feeling their oats, and one of the issues I recall being live in that era was the question of a Constitutional Amendment defining marriage as a union between one man and one woman. This topic was campaign gold for Republicans for the better part of a decade, who frequently ran under the banner of “God, Gays, and Guns,” yet they infrequently did anything about these particular items at that time.

Nobody got serious about the Federal Marriage Amendment until it was brought to the House for a vote in 2002, (by a Democrat, strangely) by which time the political will to do something as tough as “Amending the Constitution” had already begun to ebb — if it ever existed in the first place. I would encourage you to read the Wiki article on the history of the Marriage Amendment, as it’s fascinating all on its own. Senator Wayne Allard of CO (my Senator at the time) did yeoman’s work, following the proscribed procedures and attempting to carry out his constituents’ will. (Lest you think I’m being overly critical of the Republicans, the article also puts in relief the calculated political cowardice of many feckless Democrats — most notably John Kerry and John Edwards, who skipped cloture votes in the Senate on the Amendment in order to avoid having to come down on one side or another of the issue. They were, and remain, chicken livers.)

I tell you this story because it is a tale of both hubris and overreach on the part of Republicans and Conservatives which led ultimately to that moment at the Supreme Court where the dam burst wide open with Obergefell. It seems clear in hindsight that Amending the Constitution to explicitly prohibit gay marriage was likely a fool’s errand and a potential millstone which would have hung around the necks of many involved. However, the strict denialist mentality which animated the impulse in the first place didn’t account for the notion that a more balanced approach to the question could have ultimately protected the interests of all involved and provided Republicans with political cover on the issue for generations to come.

What do I mean by that? Forward-looking politicians could have very easily supported both the Federal Marriage Amendment and the creation of a narrowly tailored, legislative privilege for homosexual civil unions. This would have had the effect of preventing the Masterpiece Cakeshop kerfuffle, protecting practitioners of faith from coercion while giving bourgeois gays the ability to have their unions recognized (in the eyes of the state) in the same fashion as heterosexual couples. Providing a legal outlet for such positive desires even as you bar the other door would have lowered the stakes on the Constitutional Amendment defining marriage, likely allowing it to proceed towards ratification. Yet, the concept of “tradeoffs” and “compromise” seemingly hasn’t entered into people’s political thought processes for some time. In the final analysis, the urge for absolutism (and to be fair, political grandstanding) turned out to be a costly oversight when the cultural and political ground ended up shifting under Republicans and the right.

That brings me to the fight over Ireland’s Amendment 8. Amendment 8 has been on the books in Irish Law since 1983, although the act of Abortion has been punishable under law there since 1861. My own views about abortion are complicated, and essentially boil down to the idea that a State which is powerful and knowledgeable enough about you to know that you’re in the early stages of pregnancy is a State which is in possession of far too much information about the most private aspects of your life. As lamentable as we might find abortion to be personally, either due to religious teaching or personal abhorrence, we would be wise to contemplate the potential consequences of inviting the state to intrude into people’s affairs at that level of granularity.

Clearly, conservatives in Ireland were not swayed by this sort of argument of practicality when they passed Amendment 8, and therein I think lay the seeds of the flood which overwhelmed them last week. Amendment 8 was repealed by popular referendum via a final count of 67/33 percent; a neat 2:1 defeat for pro-life advocates. It is also clear that this was about the worst outcome imaginable for such pro-life advocates, as the gates have essentially been cast wide open.

Turning back to America, one wonders: What might happen if the mechanics existed to hold such a plebiscite here? Based upon available data, the results would likely come off even worse. Gallup tracks this exact set of questions rather closely and has for years. The results are both sobering and enlightening.

Of those asked “Do you think abortion should be legal under any circumstances, legal under certain circumstances or illegal in all circumstances?” the answer “legal under certain circumstances” earned 50 percent of responses. “All circumstances” earned another 30 percent. All told, that means some 80 percent of Americans questioned want there to be some provision for abortion, even while half of the same group questioned view the practice as being morally wrong. The relative constancy of the percentages of answers involved is somewhat remarkable but indicates the relative durability of people’s adherence to their stated positions.

Herein lies the lesson for Conservatives: Americans are obviously of two minds about Abortion. Although many view it as immoral, a considerably higher quantity nonetheless want the practice to remain at least partially legal, particularly at the earliest phases of pregnancy and in situations where the mother’s life is at risk. Advocacy for a straight-up ban on abortion is, therefore, a potential political death sentence for most politicians due to this rather large split in the American mind. Therefore, it seems likely that the only politically feasible outcome is to cobble together a coalition of those in favor of a ban and those in favor of restriction. This is a union which has borne considerable fruit, such as the 20-week abortion ban, born alive protections and the potential defunding of Planned Parenthood.

Indeed, moral suasion has done considerable work in reducing the number of abortions in this country — the rate has fallen by half since the 1980s — and this should be viewed as an unalloyed good. But we should not for one second view that good as being the diametric enemy of the perfect America which some people see in their mind’s eye.

This is the mistake American Conservatives made with Gay Marriage, with the result being the rancor and unrest we’ve seen following Obergefell. Irish Conservatives may have made a similar miscalculation with Amendment 8.

The left is guilty of this impulse as well on a variety of issues — the question of Guns comes immediately to mind — and we’ve seen how that has gone for them. Democrats are routinely drummed on the issue of firearms because they’re beholden to the most extreme voices on their side of the aisle on that issue. Could a pro-gun Hillary Clinton perhaps have won the 2016 election? I’m glad they’re too foolish for us to have found out.

Since then, the left’s extreme and shrill attitude towards the President and his Administration has driven ever larger numbers of people into his camp. Their example proves that succumbing to that sort of absolutism is the surest road to political perdition.

We would be better off learning from their object lesson than retaliating in kind.

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There are 34 comments.

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  1. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    Z in MT (View Comment):
    Do you think we could move to weaken no-fault divorce now that gays can marry too?

    This is an interesting suggestion! I’d be for it—if we are to take marriage seriously, (“for the children”)  let’s take it really seriously! 

    • #31
  2. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    Ed G. (View Comment):
    What public purpose is served by doing so?

    the children.

    • #32
  3. Ed G. Inactive
    Ed G.
    @EdG

    Kate Braestrup (View Comment):

    Ed G. (View Comment):
    What public purpose is served by doing so?

    the children.

    No, civil marriage isn’t about children. Or not only about children or not primarily about children. Whatever, it is about human dignity and social approval apparently. Of the people who can’t have children or don’t want to: Why should we obligate those relationships to be permanent or exclusive now that we’ve explicitly said that marriage isn’t about children? You don’t have to have children to be married and you don’t have to be married to have children. Seems like unequal application of the law to require these obligations in some marriages but not others, and it seems like childless marriages shouldn’t be held to obligations whose main public purpose doesn’t apply to them.

    • #33
  4. Kate Braestrup Member
    Kate Braestrup
    @GrannyDude

    Ed G. (View Comment):

    Kate Braestrup (View Comment):

    Ed G. (View Comment):
    What public purpose is served by doing so?

    the children.

    No, civil marriage isn’t about children. Or not only about children or not primarily about children. Whatever, it is about human dignity and social approval apparently. Of the people who can’t have children or don’t want to: Why should we obligate those relationships to be permanent or exclusive now that we’ve explicitly said that marriage isn’t about children? You don’t have to have children to be married and you don’t have to be married to have children. Seems like unequal application of the law to require these obligations in some marriages but not others, and it seems like childless marriages shouldn’t be held to obligations whose main public purpose doesn’t apply to them.

    I’ve made a really, really extensive argument about the value of marriage (stable, monogamous pair bonds forming the nucleus around which extended family ties are created between non-kin) to society as a whole with or without children. Indeed, I argue that this is one reason other naturally childless people—the elderly,  for example—are nonetheless permitted to marry.

    But the presence of children in same-sex households was used as an argument for same-sex marriage during the SSM debates. So it seems to me that—money where your mouth is!—one could seize this opportunity to strengthen rules that support and encourage lasting marriages. If marriage is a good thing, then let’s make it a much more durable and protected good thing.

     

    • #34
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