My BreakPoint column posted today is about the undeniable differences between Obergefell v. Hodges and Brown v. Board of Education. For those who do not remember, these are the Supreme Court cases in which gay marriage was allowed and school racial segregation was disallowed. Several people have been saying Obergefell is the Brown of our generation, and I show in this column that the differences between the two are too great to permit seeing them that way. Gay rights have little in common with historic civil rights.
My argument there does not depend in any way on moral issues or on whether gay marriage is a good idea, so I believe it should be persuasive to persons on both sides of the current debate.
New Rights or a New Institution
It’s only half of what I originally wanted to say, however. I ran out of space. The rest of my discussion picks up here with what I wrote there about “glarriage” and marriage:
Imagine another world where instead of fighting for same-sex marriage, gays and lesbians had campaigned for, and won, the right to glarriage (from a mash-up of gay, lesbian, and marriage). Suppose the Supreme Court had decreed that partners in glarriage would have the same rights, privileges, and responsibilities under law that partners in marriage have.
In that world opposite-sex partners would never enter into glarriage, and same-sex partners would never enter into marriage. Marriage and glarriage would never be considered two instances of the same institution, but as two separate though legally related institutions.
It didn’t happen that way in this world; we didn’t end up with two separate institutions–or did we? Is there any empirical difference between the following?
- The Court created a separate institution to exist alongside marriage, but called it by the same name.
- The Court created for same-sex couples the right to enter into the existing institution of marriage.
Both versions have the same functional and practical characteristics. Obviously the gay-rights agenda has been to pursue 2, not 1. They’ve been campaigning for a new right to be granted them. It is not (as I argue in the linked column) an old right being extended to them, on the recent recognition that it should have been theirs all along. It is a new right.
Which leads to my thesis for this article: If it’s true that the Supreme Court created a new right when it decided for gay marriage (and I think it is), then everyone, gays included, has reason to be very worried about it. They may have lost more than than they won; their victory may be Pyrrhic in the long run.
This blog post is not about gay rights. The Obergefell decision was the occasion for my writing it, but I could have written it about any other rights-creating Supreme Court decision. Gay rights entered in to the beginning of this blog post, but only so that I could establish the fact that Court has taken on for itself the business of extending new rights to some groups.
In this article I push the envelope on my commitment not to write about politics. It is not about any campaign, however. It’s about how we can continue to live in a freedom-supporting country.
Government Within Limits
There’s plenty of controversy over whether America was founded as a Christian nation. I don’t actually care about the numbers and proportions of pastors and churchgoers in the founding bodies. Regardless of all that, it’s hard to miss the Christian sensibilities built into our Constitutional approach to government. The self-governance principles, the separation of powers, and the checks and balances in it reflect a biblical view of humans.
The Constitution recognizes that we are people of dignity and knowledge with a responsibility to rule our individual domains to the extent that we have authority: from house and yard to community to workplace to local, regional, state, and federal government. It recognizes at the same time that we are marred by fallenness, and each individual needs limits on his or her power; thus checks and balances, and thus also separation of powers.
Legislators Without Limits
Now, if the Supreme Court has indeed created a new right (as I have argued more thoroughly in the other article), then we have a breach in our Constitutional protections from overreaching power. The ability to create rights in that manner seems to have been arrogated to the Bench by the Bench. The Court created for itself the right to create rights. This appears to be a case of unrestricted power, for there is no Constitutional remedy if the Court uses that power to create rights contrary to the will of the other two branches and of the people.
A Court that can create rights can take those rights away, or it can interpret them out of practical existence. Witness the Court’s recent unwillingness to take up First Amendment religious freedom cases.
And the Court’s ability to create or remove rights is extremely powerful. The Court can invalidate legislation, and it can order legislatures to pass laws. There is little practical distinction between that and their functioning as legislators themselves, except that members of the Court are unelected and serve for life. Their only constraint is the Constitution; and a Court that can find a right to gay marriage in the Fourteenth Amendment while missing a right to religious freedom in the First is a Court for whom the Constitution provides very little restriction indeed.
Freedom’s End Foreshadowed
Same-sex couples have wanted to be free to marry. They gained that freedom through a Court action that undermines freedom. In it the Court established itself further as the kind of unlimited governing body that the Constitution was written to prevent. Gay-marriage supporters won a battle for a certain kind of freedom. Winning battles that way could spell the end of our freedom—and theirs—to fight the next one.