Not the SCOTUS comments you might expect

I’m disappointed at our Supreme Court’s Wednesday decisions, but I’ll not annoy you with my cries de coeur. They’re in my private journal as they occur to me.

The Court ruled that Prop 8 proponents were not the right party to bring the suit. Wherever vague and conflicting standing doctrine points, its application here eviscerated the California referendum process. That process was designed to let citizens pass laws, and amend their constitution, to check and balance government officials. If those same officials can effectively veto provisions of the state constitution by refusing to enforce and then refusing to defend them, the point of the referendum process is defeated.

(The Supreme Court, You and Me, and the Future of Marriage)

Did you get that? It didn’t say “Blah blah blah blah blah.” The California referendum process is their to let California voters overrule their elected officials. It isn’t an easy process. As I recall, the Attorney General gets to edit the referendum question to some extent, and the Attorneys General use that power to skew voting as much as possible in the direction they want.

Now, if the voters repudiate their masters by clearing all those hurdles, it appears that the government can just smirk and play their final trump card: refuse to defend and trust than nobody else has standing. Perhaps there could be voter standing if the party or parties seeking to defend could demonstrate particular and tangible harm, but that’s not likely to be true on most of the day’s vexed social issues.

[E]ven some who cheer the [DOMA] decision have called its reasoning less than coherent or satisfying.


DOMA, [Justice Kennedy] goes on to insist, must have been motivated by a “bare desire to harm,” or “to disparage and to injure.” Its sole purpose and effect is to “impose inequality,” to deny “equal dignity,” to “humiliate.” He infers all this from a few passages in its legislative history about defending traditional morality and the institution of traditional marriage, from its effects, and from the act’s title. Most importantly—and scandalously, given his obligations as a judge—Kennedy does so with nothing more than passing reference to arguments made for DOMA in particular, and conjugal marriage in general. How else could his reasoning leap from the people’s wish to support a certain vision of marriage, to their alleged desire to harm and humiliate those otherwise inclined?

The effect of this refusal to engage counterarguments is the elevation of a rash accusation to the dignity of a legal principle: DOMA’s supporters—including, one supposes, 342 representatives, 85 senators, and President Clinton—must have been motivated by ill will.


In his DOMA dissent, Justice Alito goes out of his way to frame the central issue of both cases: They involve, he writes, a contest between two visions of marriage—what he calls the “conjugal” and “consent-based” views. He cites our book as exemplifying the conjugal view of marriage as (in his summary) a “comprehensive, exclusive, permanent union that is intrinsically ordered to producing children.” He cites others, like Jonathan Rauch, for the idea that marriage is a certain commitment marked by emotional union. And he explains that the Constitution is silent on which of these substantive, morally controversial visions of marriage is correct. So the Court, he says, should decline to decide; it should defer to democratic debate.

The Court is likelier to defer to democratic debate if it believes there’s a genuine debate to defer to.

(Ibid.) The supporters of the traditional (conjugal) view of marriage must not let liars like Justice Kennedy silence them by baseless accusations of ill will. That is a partisan ploy, and has long been a conscious tool of the proponents of SSM. Nobody who respects truth will resort to this accusation.

For the record, I still support the traditional view of marriage and, as a corollary, must oppose same-sex marriage. I support the traditional view for many of the views set forth in What is Marriage? And I say that as one who has esteemed members of my extended family who experience same-sex attraction — one who no doubt will marry as soon as his state allows it (if he hasn’t already traveled to a state that does). My son’s most influential high school mentor was a barely-closeted gay man. He was “barely” closeted only because the smut-mongers wouldn’t leave him alone, to conduct his professional life with integrity, neither affirming that he was gay nor denying it. His sexuality was, properly speaking, not relevant — but some creeps, and more particularly, Church Lady Creepettes, insisted that They Knew, and demanded his brilliant, inspiring head on a platter. Thanks to them, perhaps (he won’t give them the perverse pleasure of confirming that they led him to leave), students now are spared his brilliance, and the program he led shows it.

It pained me more than once to stand in public meetings and oppose what I thought misguided in front of him and other closeted or “out” friends and acquaintances with same-sex attraction.

Justice Alito is right about their being two competing views. One of the things I’ve learned this Spring is that the traditional view is waning partly because young people don’t know about marriage history and falsely assume that the traditional view was invented, a la Justice Kennedy, out of desperate need to disguise the ill will that motivated opposition to SSM. But that’s not true:

Consummation or consummation of a marriage, in many traditions and statutes of civil or religious law, is the first (or first officially credited) act of sexual intercourse between two people, either following their marriage to each other or after a prolonged sexual attraction. Its legal significance arises from theories of marriage as having the purpose of producing legally recognized descendants of the partners, or of providing sanction to their sexual acts together, or both, and amounts to treating a marriage ceremony as falling short of completing the creation of the state of being married.

This is from the notorious right-wing Christianist website, Wikipedia.

Before same-sex anything was at stake, our society was already busy dismantling its own foundation, by innovations like no-fault divorce and by a thousand daily decisions to dishonor the norms of marriage that make it apt for family life. Atomization results from these forms of family breakdown—and from the superficially appealing idea that emotional closeness is all that sets marriage apart, which makes it gauche to seek true companionship and love in non-marital bonds. Part of rebuilding marriage will be responding to that atomization—reaching out to friends and neighbors suffering broken hearts or homes, or loneliness, whatever the cause. That, too, will make the conjugal view of marriage shine more brightly as a viable social option.

(The Supreme Court, You and Me, and the Future of Marriage) True. All true. There are threats besides, and probably greater (if only because they’re pandemic in the 98% that isn’t same-sex attracted), than same -sex marriage. But it’s the most acute at the moment. The others are chronic.

Finally, a collateral reason why I oppose the Tsunami:

This is perhaps the most remarkable thing about this entire debate: how so many who favor gay marriage — including, apparently, five members of the US Supreme Court — see absolutely no reason why anybody could oppose [SSM] in good conscience. We trads are not just wrong, but wicked. We are entering a dangerous world for believers. Expect to see the Law of Merited Impossibility fulfilled a lot more in the years to come. I defined it once as:

The Law Of Merited Impossibility is an epistemological construct governing the paradoxical way overclass opinion makers frame the discourse about the clash between religious liberty and gay civil rights. It is best summed up by the phrase, “It’s a complete absurdity to believe that Christians will suffer a single thing from the expansion of gay rights, and boy, do they deserve what they’re going to get.”

(Frightening the Horses)

This has by no means been a comprehensive overview of the last 34 hours’ commentariat, nor as I indicated, of my own opinion, but I thought it probably was enough out of the mainstream that you might miss it despite the merits.

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“The remarks made in this essay do not represent scholarly research. They are intended as topical stimulations for conversation among intelligent and informed people.” (Gerhart Niemeyer)

Some succinct standing advice on recurring themes.

One thought on “Not the SCOTUS comments you might expect

  1. An unfamiliar commenter posits “numerous societies (especially concentrated in what is today the United States) that have centuries-old traditions of respecting and recognizing same-sex marriages” and asks whether they “simply don’t count” as “traditional” marriage.” I found no evidence of such societies in North America ( and so did not approve the comment (comments here are moderated).

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