Right in the middle of my effusive joy about living in a country where my gay and lesbian friends can marry, the 6th Circuit Court of Appeals decided that the worst aspects of democracy, rather than the Constitution, ought to dictate what seems to be a clear-cut Constitutional issue. Judge Jeffrey Sutton, a George W. Bush appointee, wrote for the 2-judge majority:
I’m not sure it’s possible to write a worse sentence when the civil rights of citizens are at stake. First, the idea that it’s a new social issue is laughably false. One need only read the Satyricon, a Roman satire about a gay former gladiator, which was written sometime in the first century CE (most likely), to know that same-sex relationships are not new social issues. Most egregiously, however, Sutton would have us believe that a war novel or hero’s journey is playing out in front of us rather than a real-life tragedy wherein a hegemony that is decreasing in power and influence expresses their fear of their own demise by being petty and bigoted to the very end. Aside from a preference for a particular strain of theism, there is simply no compelling reason left to resist same-sex marriage. All other avenues of argument are vacuous or bigoted. Sutton continues:
“Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.”
More on that nonsense below, but first, in all fairness to the 6th Circuit, the dissenting opinion, written by Judge Daughtrey, begins with two of the most accurately scathing lines in the history of jurisprudence:
“The author of the majority opinion has drafted what would make an engrossing TED Talk or, possibly, an introductory lecture in Political Philosophy. But as an appellate court decision, it wholly fails to grapple with the relevant constitutional question in this appeal: whether a state’s constitutional prohibition of same-sex marriage violates equal protection under the Fourteenth Amendment.”
In short, “the people” ought not be allowed to vote for an unconstitutional law, and as gay marriage bans seem to violate the 14th Amendment, it matters little what “the people” think. The process of categorizing a law or provision of a law as constitutional or unconstitutional is the responsibility of the judiciary, not “the people.” Judge Sutton’s idiotic romanticism vis-a-vis citizens resolving social issues in a “fair-minded” way ignores the reality that citizens have regularly voted for and supported injustice with respect to social issues. Judge Sutton is apparently unaware of Jim Crow, poll taxes, Dred Scott, the Fugitive Slave Act, Japanese internment camps, sundown towns, and a whole host of other social issues in which the hegemony, even in the guise of SCOTUS, decided against the best interests of entire classes of citizens.
The conservative myth of “activist judges” has become a common trope, but it coheres poorly with reality, and the worst decision in recent memory was made by activist justices who allowed corporate money to affect elections against the best interests of “the people.” There are times when judges must decide the constitutionality of a law without reference to the will of the people. The will of the people is never sovereign in a culture committed to laws based on justice. It is axiomatic that the will of the people is often nothing more than tyranny and prejudice masquerading as righteousness or tradition or respect for the law. Laws based on injustice ought not to be obeyed. In the American experience, this is clearly the lesson we were supposed to learn from Thoreau, Anthony, Stanton, Chavez, King, and others.
Now the 6th Circuit has officially made this an issue SCOTUS must consider. Their reasoning is, in the words of Judge Daughtrey, an appeal to vox populi, or a wait-and-see approach. That needs to be unpacked a bit. The voice of the people (vox populi) can often decide that a situation is not so urgent that it must be addressed immediately. According to the conservative worldview, social change should not come quickly; rather, it should be deliberate and well thought out, such that it becomes a wait-and-see approach in the sense that time and talk will fix things. Dr. King addressed the wait-and-see approach in his Letter from Birmingham Jail:
“For years now I have heard the word ‘Wait!’ It rings in the ear of every Negro with piercing familiarity. This ‘Wait’ has almost always meant ‘Never.’ We must come to see, with one of our distinguished jurists, that ‘justice too long delayed is justice denied.’”
Only those who are comfortable within the system can possibly think that “wait-and-see” is a good idea. Imagine telling the victims of slavery that we will wait until citizens work out this social issue in a fair-minded way. What if fair-minded ends up being the perpetuation of slavery? Why would the slave not want to be free today? Is it not fair because a judge with good sense calls injustice by its name? Is it only fair if “the people” get to decide whether or not to support the Constitution? And if they do not, then are we compelled to call it Democracy or the rule of law, however loathsome it may be? It is certain that the Founding Fathers–and, oh, the capitalization there–did not envision that the will of the people should enshrine injustice, and unless someone can tell me why gays and lesbians ought not be able to marry in a culture where all adult citizens share equal rights, how is it aught but injustice?
At this point, many will interject objections based on the will of God, but it will be the god they prefer. They will not say “my God” or “the God of (X Faith).” Rather, they will simply assert that it is God who is offended, as if it is an axiom that there is only one god or that god can be offended. Even assuming the axioms to be correct, they will then insist that their singular deity is the deity of record, such that the monotheists of other tribes are heretics or fools, and only the children of the deity of record, according to their own reckoning, have a proper understanding of the way of God. It is a powerful delusion or an arrogant fiction, but they will not recognize it as such.
And even if we allow that their tribe possesses the truth and their tribal deity is the sovereign lord of the universe, they will not be able to explain why even intra-tribally they cannot agree as to the actual words of God, nor the proper interpretation of those words. It is a preference for the “world as they wish it to be” dressed up as Truth, and the arbiters of this version of the truth see it as absolute and feel no obligation to justify the truthiness of their words; rather, they accept their version as gospel and believe the rest of us are blinded by sin, in the grasp of the devil, in rebellion against God, or willfully ignorant to the truth that is so obvious to them. Even as they can’t agree amongst themselves.
Setting aside that brief excursus, the matter at hand is what will happen when SCOTUS is forced to decide. A 5-4 split is the most likely outcome with Justice Anthony Kennedy as the swing vote. The utter disaster will be a 5-4 decision against marriage as a fundamental right and a deferring to the states to decide who among law-abiding, tax-paying citizens may marry. This will lead to a balkanization of American states into affirming and non-affirming areas, and the very Constitution that is meant to guarantee equal treatment for citizens from state to state will be abrogated where it most matters: equal rights for all citizens.
The sane decision would be 9-0 in favor of the 14th Amendment and the dignity of all people, but Scalia, Thomas, and Alito have seldom been concerned about such lofty matters. Rather, they amuse themselves by upholding the letter of the law and ignoring its spirit. They strain out gnats and swallow camels in their zeal to show that they understand the meaning of words in the narrowest sense, but manage to ignore the “weightier matters of the law,” like love, justice, and mercy. Honestly, we live in a country where the most conservative imagine they live in a country dedicated to Christian principles, even as they don’t recognize obvious opportunities to implement Christian principles, and, it’s fair to argue, they don’t know which principles are actually Christian. They are practitioners of civil religion, and like Dostoevsky’s Grand Inquisitor, they would not recognize their Lord were He to make an appearance in their day-to-day lives.
Finally, we must address one final argument against same-sex marriage, and it comes from those often self-identified “Libertarians” who assert that marriage is not the proper purview of government. While it is easy to agree that the government should not be involved in marriage, the simple fact is that the government is currently involved in marriage. The entanglements are manifold, including insurance, survivor benefits, hospital visitation, income taxes, etc. Unless and until all heterosexual couples are willing to divest themselves of the benefits attendant with marriage, including tax breaks, this is simply an argument of avoidance, which is to say, it avoids the larger questions in favor of a gigantic, convenient red herring.
--Co-published with Literati Press.