Ross Douthat predicts that Americans’ future liberty of conscience will be dependent on liberal magnanimity, and wonders (characteristically) if surrendering now might produce better terms.
Unless something dramatic changes in the drift of public opinion, the future of religious liberty on these issues is going to depend in part on the magnanimity of gay marriage supporters — the extent to which they are content with political, legal and cultural victories that leave the traditional view of marriage as a minority perspective with some modest purchase in civil society, versus the extent to which they decide to use every possible lever to make traditionalism as radioactive in the America of 2025 as white supremacism or anti-Semitism are today. And I can imagine a scenario in which a more drawn-out and federalist march to “marriage equality in 50 states,” with a large number of (mostly southern) states hewing to the older definition for much longer than the five years that gay marriage advocates currently anticipate, ends up encouraging a more scorched-earth approach to this battle, with less tolerance for the shrinking population of holdouts, and a more punitive, “they’re getting what they deserve” attitude toward traditionalist religious bodies in particular. If religious conservatives are, in effect, negotiating the terms of their surrender, it’s at least possible that those negotiations would go better if they were conducted right now, in the wake of a Roe v. Wade-style Supreme Court ruling, rather than in a future where the bloc of Americans opposed to gay marriage has shrunk from the current 44 percent to 30 percent or 25 percent, and the incentives for liberals to be magnanimous in victory have shrunk apace as well.
I’m still editing my own opinion, taking out all the epithets and toning down the pejoratives.
The Graeco-Egyptian deity Serapis is commonly depicted wearing a modius (a sort of Egyptian headgear favored by Elusinian deities). Roman copy after a Greek original from the 4th century BC, stored in the Serapaeum of Alexandria. Vatican Museum
The argument that there exists a supposed “right to marry” currently in some cases unfulfilled is clearly specious. In the first place, everyone in the United Stated already enjoys exactly the same right to marry right now. What some people are demanding is not the opportunity to marry, which they already possess. What they are demanding is the right to redefine marriage and the recognition of the state of other kinds of associations (the sort they desire) as the same thing as marriage, and as marriage’s moral and social equal.
The proposition that the association of a pair of persons of the same sex is just as good, just as valuable to society, just as morally acceptable as marriage is unquestionably a controversial proposition, and one from which a very large portion of the population of the United States would dissent. It is about as good a case as you could possibly find of a matter of theoretical moral and religious opinion on which rational men of good will are inevitably going to differ.
The American tradition is one of pluralism and we are theoretically constitutionally committed to state neutrality on issues of religious faith and morals. So, the real question ought to be: what is the authentically neutralist position that the state ought to be taking on the practice of same sex marriage?
It is widely agreed that the state has no right to enforce traditional religious morality or to interfere with the voluntary and private actions of consenting adults. And that is the status quo. No liberty of association of same sex couples is currently being infringed. No one is stopping them from living together. No one is interfering with their sexual relations. No one is even preventing them from conducting whatever sort of ceremonies of mutual commitment they desire, or preventing them from describing themselves within their own circles as married. The same sex marriage offensive is not really aimed at gaining for same sex couples the ability to file joint tax statements or the other practical benefits of matrimony. If insurance coverage, pension benefits, and joint tax returns were really the issue, we would be discussing some kind of civil union arrangements and the level of controversy and heat of argument would be very different.
What same sex couples want, however, is not really something practical. What they want is the Same Sex equivalent of the Civil Rights Bill of 1964. They want federally-enforced moral and social equality. They want the government on their side, enforcing their worldview and their moral perspective on everybody else.
Same sex marriage advocates refer routinely to “Marriage Equality,” but no system of real equality allows someone who is actually not equal to someone else in specific characteristics pertaining to any kind of special conventionally recognized status to simply change the definition in order to gain access to prestige and privileges associated with that status for which he is not qualified.
On the contrary, the ability to modify the fundamental definition of an important institution to benefit oneself is really not “Equality” at all. It is actually a most extraordinary kind of special power and privilege, not normally accessible or available to anyone.
The spectacular inequality characteristic of the contest for “Marriage Equality” can even be seen in the history of the case currently before the Supreme Court. In California, in 2004, the mayor of San Francisco simply set aside state law and began issuing same sex wedding licenses. In doing so, he deliberately ignored a statute passed by the State Legislature in 1977, and a ballot initiative (Proposition 22) passed by a margin of 61.4% in 2000. The State Supreme Court, however, in 2008, intervened to rule, In re Marriage Cases, in favor of Same Sex Marriage. Which, in turn, produced Proposition 8, another ballot initiative in which Californians affirmed their opposition to state recognition of Same Sex Marriage.
In the entire history of the matter, we find a special interest group (the Same Sex community) allied with the national community of fashion elite determined, by hook or by crook, to have their way.
What the issue really revolves around is the determination of the national elite to impose its own faith and morals position coercively, using government, on everybody else.
Same Sex Marriage advocates are particularly fond of attacking a strawman argument, and pointing out that recognizing Same Sex Marriage does not practically impact traditional marriages. They would be indignant, I am sure, if I were to note in reply, that Same Sex Marriage does, however, insult and demean, by travestying traditional marriage, by the imitation of its form, and the usurpation of its honorable status by that which is not honorable.
A fraudulent libertarian argument commonly used tries to contend that no one else is injured if Same Sex couples are recognized by the state as married.
Suppose, just for example, that another wonderful new species of Enlightenment swept the land, and that the intelligentsia, the international elite, Hollywood, the mainstream media, and, what Vito Corleone used to call the Pezzonovante all suddenly converted to the Hellenic and Elusinian cult of Serapis. You and I might continue to think in terms of Christmas and Easter, and all that, but Barack Obama, Bill and Hillary Clinton, the presidents of Yale and Harvard, the editorial board of the New York Times, Sean Penn, Tina Fey, Oprah Winfrey, and the rest were all now mad keen worshipers of the god Serapis. And now they want the image of Serapis placed on the US dollar bill in the place of the portrait of George Washington.
It would just be a small concession of Elusinian Equality. Who would it hurt? Only the uncharitable and mean-spirited could possibly deny a school of thought discriminated against for two thousand years its basic dignity.
George Will, on ABC News recently, did everything but sing Hallelujah to the river gods as civilization appeared ready to slide another long mile downstream, with the Supreme Court announcing its intention to intervene in the culture wars conflict over Same Sex Marriage in the grim immediate aftermath of the 2012 election.
While Supreme Court watchers ponder how justices will come down in the debate over gay marriage, ABC’s George Will said Sunday on ABC News “This Week” it’s clear where public opinion is headed.
“There is something like an emerging consensus,” Will said, noting voters in three states recently endorsed same-sex marriage initiatives. [emphasis added] “Quite literally, the opposition to gay marriage is dying. It’s old people.”
Why, I wonder, is George Will apparently surprised that young people are so commonly successfully-brainwashed subscribers to establishment community of fashion articles of faith, like the principle that no mere theory should ever be allowed to stand in the way of immediate individual personal gratification, or the even more important principle that Equality is the utmost supreme value transcending all other values?
It always looks exactly this way in every culture wars battle. Young people care nothing for theories and tradition and everything for fashionable opinion and being nice.
But Mr. Will overlooks a couple of important considerations.
Young people inevitably grow older and gain experience and most of them recover from the illusions with which they were indoctrinated during their school years. Time is not really on the side of the progressive left. Conservatives and sane rational people do not just grow old, die off, and become extinct, leaving behind a Saturnalia of progressive fantasy. What really happens is that each generation of dummer jungen gradually matures, turning from radicals and fashionistas into sober and responsible burgesses, tax payers, and adults. The gleeful supporters of free love and transgressive sex turn into censorious grey-haired married couples with children of their own.
In the end, you simply wind up with the repetition of the comedy of a society always divided nearly evenly between the party of the young, the radical, and the stupid and the party of the adults.
We have a serious problem in America in having allowed too many important institutions to fall into the hands of an unworthy and only-superficially-intelligent intelligentsia. But we do not need to despair.
George Will obviously spends too much of his time in the fantasy cocoon of media culture. He has succumbed to believing in the left’s narrative of the grand march of Progress, of the inevitable and irreversible movement of society in the direction of coercive egalitarianism, materialism, and statism.
George Will has forgotten the first thing any conservative ought to remember. Magna est veritas et prævalebit. (“The truth is mighty and it shall prevail.” The Revolutionary Convention may renumber the calendar and change the name of the months to “the windy one” and “the rainy one,” an infatuated majority of supreme court justices may decide that the intention of the framers guarantees the sacramental equality of sexual perversion, but History will go on, and absurdities, grotesqueries, and the wild excesses of human folly and obsession over time typically fall of their own weight. Later generations laugh at the Victorian sexual pudeur that once installed skirts on piano legs, and succeeding generations will similarly marvel at the extravagantly bizarre positions so many in our own era were driven to by the current dementia founded upon egalitarianism.
There has never, in the entire history of the human race, been any society or culture that regarded homosexual attraction as a basis for lifelong monogamous relations or which looked upon the sterile couplings of members of the same sex as worthy of the dignity of recognition as equivalent to normal marriage.
Today’s moral breakdown and intellectual disorder may possibly lead to the official proclamation of such absolute nonsense as the new law of the land, but the left’s fools and demoniacs can never possibly in the long run succeed in establishing permanently so preposterously-based an institution as Same Sex Marriage.
The search for the Roberts’ Taxon exceeded in difficulty the search for the Higgs Boson.
Iowahawk has news of the latest breakthrough in constitutional ontology.
Jubilant scientists at the DNC’s High Speed Word Collider (HSWC) announced today they have conclusively disproven the existence of Roberts’ Taxon, the theoretical radioactive Facton particle that some had worried would lead to the implosion of the entire Universal Health Care System.
“I think it’s time to pop the champagne corks,” said HSWC Director David Plouffe. “Then blaze some choom.”
The landmark experiment in Quantum Rhetoric began early this week after legal particle cosmologist John Roberts published a paper in the Quarterly Journal of Tortured Logic that solved the long-debated Pelosi’s Paradox in Universal Health Care Theory.
“Pelosi’s Paradox states that in order to find out what is in a health care bill, it would have to be passed,” explained physicist Steven Hawking. “But in order to be a law it would have to be constitutional, which means someone would have to know what was in it, which would mean it couldn’t have been a bill in the first place. Think of Schroedinger’s Cat, except with a lobotomy.”
To solve the paradox, Roberts proposed the existence of the Taxon – an ephemeral, mysterious facton particle that in theory would allow the Universal Health System to be constitutional, without directly observing what was in it. DNC scientists at first cheered Roberts’ findings, but it soon came apparent that it opened an even deadlier dilemma.
“If Roberts’ Taxon were really to exist, and was woven throughout the Health-Government-Time continuum, the merest realization of it would create a giant black hole in Gallup Space and cause free healthcare reality to collapse upon itself,” said Plouffe.
In order to disprove the Taxon, scientists at the HSWC devised a test experiment in their enormous CarneyLab bullshit accelerator. This test involved speeding a small mass of Facton – theoretically containing Roberts’ Taxon – and smashing it at near-light speed against a flaming super-dense ionized clod of purified bullshit.
Marc A. Thiessen discusses the differences in result between democrat and Republican Supreme Court appointments and speculates on just why Republican appointments produce such ideologically unreliable results.
Chief Justice John G. Roberts Jr.’s decision to side with the court’s liberal bloc and uphold Obamacare raises an important question for conservatives: Why are Republicans so awful at picking Supreme Court justices? Democrats have been virtually flawless in appointing reliable liberals to the court. Yet Republicans, more often than not, appoint justices who vote with the other side on critical decisions.
Just compare the records over the last three decades. Democrats have appointed four justices — Ruth Bader Ginsberg, Stephen G. Breyer, Elena Kagan and Sonia Sotomayor. All have been consistent liberals on the bench. Republicans, by contrast, have picked seven justices. Of Ronald Reagan’s three appointees (Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy) only Scalia has been a consistent conservative. George H.W. Bush appointed one solid conservative (Clarence Thomas) and one disastrous liberal (David Souter). With George W. Bush’s appointments of Samuel A. Alito Jr. and Roberts, conservatives thought finally they had broken the mold and put two rock-ribbed conservatives on the bench — until last week, that is, when Roberts broke with the conservatives and cast the deciding vote to uphold the largest expansion of federal power in decades.
So Democrats are four-for-four — a perfect record. Republicans are not even batting .500.
Haruspex in action
Jonah Goldberg heaps some well-deserved abuse on Chief Justice Roberts’ ruling.
Why not just cut open a goat and be done with it?
In ancient Rome, a special kind of priest called a haruspex would “read” the entrails of sheep to divine the will of the gods, the health of the growing season, or whatever else was weighing on the minds of men. Because animal guts don’t, in fact, impart that much information about, say, next year’s wheat harvest, the haruspices could pretty much make it up as they went along. The same went for the auspices, priests who studied the flight of birds and derived signs or omens called auguria (from which we get “auguries”). Ultimately, the haruspices and auspices made their decisions based upon the whims, vicissitudes, and demands of politics in one form or another. If the rulers were happy with the result, they didn’t much care what the guts actually said.
Fast-forward to chief haruspex John Roberts.
In the majority opinion written by Roberts, the Supreme Court held that the mandate to buy health insurance under the Affordable Care Act (Obamacare) is unconstitutional under the Commerce Clause and the Necessary and Proper Clause. But Roberts also found that it’s constitutional under Congress’s power to tax. It is on these grounds that Roberts upheld the constitutionality of Obamacare, siding with the four liberal justices of the bench.
The upshot is that Congress cannot use the Commerce Clause to force you to eat broccoli, but it can tax you into doing so. Huzzah for liberty!
To reach this decision, Roberts had to embrace a position denied by the White House, Congress, and vast swaths of the legal punditocracy: that the mandate is a tax for the purposes of constitutional consideration but not a tax according to the Anti-Injunction Act (which bars lawsuits against taxes until after they’re levied). Roberts’s effort, wrote Justice Antonin Scalia in dissent, “carries verbal wizardry too far, deep into the forbidden land of the sophists.”
Paul Rahe makes a very interesting argument that John Roberts only appeared to cave. That, in reality, the Chief Justice was playing a diabolically clever long game strategy which involved permanently gutting Congressional illegitimate exploitation of the Commerce Clause while only apparently surrendering on Obamacare. Roberts, he contends, vastly enhanced the authority and immunity to liberal attacks of the Court, while dealing a deadly blow to the regulatory administrative state, and yet, hidden in the Tax Powers interpretation, astute commentators are able to identify aspects of the opinion boding very, very ill for Obamacare.
Most conservatives … suspect that John Roberts did not have the stomach to confront the President and his party. See, for example, Joel Pollak’s post Did Roberts Give in to Obama’s Bullying? Moreover, there is evidence that the opinion authored by Justice Scalia was originally a majority opinion. Roberts was forced to back off. His was an act of judicial cowardice. ...
Or was it merely a recognition of the weakness of the judicial branch? ... Roberts is very much concerned with sustaining the legitimacy and influence of the Court, and Obama and the Democrats have made it clear that they would regard a decision overturning Obamacare as a declaration of war.
There is, I am confident, more to it than this. In his opinion, the Chief Justice affirmed the principle asserted by Justices Kennedy, Alito, Scalia, and Thomas. He made it clear that the commerce clause does not give Congress authority over economic activity that we do not engage in. He also made it clear that the necessary and proper clause cannot be applied to achieve this end. In short, he joined these four Justices in setting a clear limit to the commerce clause, and he paved the way for future challenges to extensions of the regulatory state.
At the same time, he dodged the political firestorm, and nearly all of the liberals who have commented on the matter – a slow-thinking lot, in my opinion – have applauded what they take to be cowardice on his part as “judiciousness.” Glenn Reynolds at Instapundit was among the first to recognize that Roberts might be playing an elaborate game. ... Reynolds pointed to one crucial fact: [Emphasis added] Senate rules do not allow a filibuster when the bill under consideration has to do with imposing or repealing a tax. If the Republicans take the Senate and the Presidency, they can now repeal the individual mandate. They will not need sixty votes. ...
[Another crucial detail] The version of Obamacare that became law originated in the Senate. The Constitution stipulates that all tax bills must originate in the House. [It is possible to] file another suit arguing that the mandate is unconstitutional because the Senate cannot originate tax bills.
Chief Justice Roberts hurrying off to write his decision.
Looks like. David Bernstein, at Volokh, shares evidence that Chief Justice Roberts switched his vote and the majority on the Court changed.
Scalia’s dissent, at least on first quick perusal, reads like it was originally written as a majority opinion ... (in particular, he consistently refers to Justice Ginsburg’s opinion as “The Dissent”). Back in May, there were rumors floating around relevant legal circles that a key vote was taking place, and that Roberts was feeling tremendous pressure from unidentified circles to vote to uphold the mandate. Did Roberts originally vote to invalidate the mandate on commerce clause grounds, and to invalidate the Medicaid expansion, and then decide later to accept the tax argument and essentially rewrite the Medicaid expansion (which, as I noted, citing Jonathan Cohn, was the sleeper issue in this case) to preserve it? If so, was he responding to the heat from President Obama and others, preemptively threatening to delegitimize the Court if it invalidated the ACA?
Chief Justice Roberts voted with the liberals to uphold the bill.
The Supreme Court astonished many Americans including this blogger by upholding Obamacare essentially in its entirety by ruling that the individual mandate is a tax.
Barack Obama can be seen in this video arguing that the individual mandate is not a tax (increase). (H/T Patterico)
What does all this mean?
Well, I guess our liberal friends are going to change their minds about the illegitimacy of the Supreme Court, and Chief Justice Roberts is going to receive massive quantities of strange, new respect.
If the Court is willing to read the taxing power so sweepingly, in future Congress won’t need to go looking to the Commerce Clause. In essence, the Roberts Court has decided to dramatically expand Congressional power far more than it would have done if it had followed Wickard and upheld the law under the Commerce Clause.
We are left wondering, if the Obamacare individual mandate is a legitimate exercise of an enumerated Congressional power, what could Congress try to compel individual Americans to buy or do that would be beyond its legitimate authority?
Over on Twitter,
Drew M observes: Just a reminder: Democrats NEVER get screwed by their Court nominees.
Megan McArdle has returned to blogging just in time to deliver a post anticipating the Supreme Court’s decision on Obamacare.
Personally, I suspect that progressives will stop attacking the court pretty soon. I have been much amused watching people try to simultaneously defend the fruits of Franklin Delano Roosevelt’s outrageous court-bullying, while also indignantly claiming that it would be abusive, infamous, fundamentally illegitimate and also, downright mean, for conservative justices to even think about overturning long-standing precedent. Suddenly, the internet is full of Latter Day Originalists who think that the constitution was handed down by God on stone tablets—in January 1936.
Since the argument that justices aren’t allowed to overturn laws passed by the legislature, or that they aren’t allowed to overturn long-standing precedent, or that 5-4 decisions aren’t legitimate, would undercut a vast body of laws liberals love—from Miranda to Roe to Boumediene—I tend to think they’ll give up on this line fairly quickly. Especially since going on the attack means spending even more valuable pre-election airspace saying “Hey, voters! Remember that health care law that we passed even though you hated it? The one you still don’t like? Well, I just wanted to remind you that it was also unconstitutional, according to the Supreme Court!”
On the other hand, I consistently underestimate both the hypocrisy, and the political stupidity, of politicians and political activists.
As the fatal hour when the Supreme Court announces the fate of Obamacare’s individual mandate draws near, the New York Times reports that a lot of Washington liberals today are looking embarrassed and trying to come up with new excuses for their past overconfidence.
With the Supreme Court likely to render judgment on President Obama’s health care law this week, the White House and Congress find themselves in a position that many advocates of the legislation once considered almost unimaginable.
In passing the law two years ago, Democrats entertained little doubt that it was constitutional. The White House held a conference call to tell reporters that any legal challenge, as one Obama aide put it, “will eventually fail and shouldn’t be given too much credence in the press.”
Congress held no hearing on the plan’s constitutionality until nearly a year after it was signed into law. Representative Nancy Pelosi, then the House speaker, scoffed when a reporter asked what part of the Constitution empowered Congress to force Americans to buy health insurance. “Are you serious?” she asked with disdain. “Are you serious?”
Opponents of the health plan were indeed serious, and so was the Supreme Court, which devoted more time to hearing the case than to any other in decades. A White House that had assumed any challenge would fail now fears that a centerpiece of Mr. Obama’s presidency may be partly or completely overturned on a theory that it gave little credence. The miscalculation left the administration on the defensive as its legal strategy evolved over the last two years.
“It led to some people taking it too lightly,” said a Congressional lawyer who like others involved in drafting the law declined to be identified before the ruling. “It shouldn’t strike anybody as a close call,” the lawyer added, but “given where we are now, do I wish we had focused even more on this? I guess I would say yes.”
Watch Nancy Pelosi confidently predict Obamacare being upheld 6-3 and then assuring reporters that she knows the Constitution and the bill is “ironclad” and laugh.