Liberals are forever bloviating about “our values” and “our democracy.”
What they really mean, though, is their values, not our constitutional principles, and when the latter inevitably conflicts with the former, democracy is the last thing they want. “Our democracy,” it seems, is a place where judges decree how we shall live — until we get judges who actually believe in democracy, at which point, progressives want a do-over with new judges.
Thus, the Left’s latest hysteria: The Supreme Court’s restoration of constitutional norms in the Dobbs v. Jackson Women’s Health Organization abortion case means the justices are poised to “outlaw” contraceptives, private consensual sexual acts, and same-sex marriage. On that last one, remember when sex used to be a thing —
when the liberals were all about women’s rights
? Now they tell us sex refers merely to “gender,” which turns out to be a malleable state of mind rather than an unalterable fact of biology. So I’m not sure why there’s suddenly such a fuss about sex (um, I mean, gender) when it comes to marriage. Of course, the tectonic plates shift rapidly these days: You’re avant-garde right up until the moment you get canceled, like Lou Reed’s “Walk on the Wild Side,” or the notion that women’s sports are for, you know, women.
The putative constitutional right to same-sex marriage stems from the court’s
Obergefell v. Hodges
ruling in 2015, which somehow seems like an eon ago. In pulling this right out of thin air, Justice Anthony Kennedy took a walk on the wild side, as he was wont to do, with what was then a four-justice liberal bloc. That bloc is now down to three. For that, thank Harry Reid and other Senate Democrats, who decided to play filibuster roulette with judicial nominations, leaving running room for President Donald Trump and Senate Republicans when the smoke cleared.
With a solid constitutional-conservative majority, the Constitution now has a fighting chance to be applied as it was understood when adopted, without the organic fog of penumbras and emanations in which liberals discover trendy, unenumerated rights (even as they pushed the actually enumerated rights, such as keeping and bearing arms, deeper into the mist). Contrary to Democratic demagogy, the Dobbs court neither usurped power nor outlawed abortion. The justices, instead, returned to state governments a power that a liberal-dominated court usurped in Roe v. Wade (1973) and its progeny.
The people in the states, through the democratic process, are free to permit abortion on demand, ban it, or adopt some regulatory regime in between — e.g., making abortion available for a reasonably limited period of time in early pregnancy and imposing a ban after that with some exceptions for rape and incest. (I won’t add maternal health to the exception list because that would abet the lies that abortion is about promoting health and that “birthing persons” must run such dangerous risks as ectopic pregnancy unless we allow abortion on demand.)
Dobbs has only been the law for about a month, but already the panic liberals tried to generate around it has ebbed. For a half-century, they duped America into believing that Roe was synonymous with “legal abortion.” To the contrary, people are starting to realize that, at their own choosing, they can have the regime of legal abortion they reluctantly favored all along — one in which the procedure is available and safe but restricted and rare. The country now sees that what made this unachievable for a half-century was judicial imperialism: Roe’s radical diktat of abortion up to the moment of birth, which few besides a fringe favored.
Post-Dobbs, if I, a pro-lifer, want abortion outlawed, I don’t have to convince five justices. I have to convince you.
As a matter of life and death, abortion is patently different from same-sex marriage, contraception, and sexual privacy — topics that are important but less grave. Nevertheless, one is left to wonder: Why are liberals so afraid to live in the culture they have shaped for decades? And why are they so frightened by the prospect of democracy, a word they repeat nonstop but a reality they are loath to try?
Same-sex marriage is deemed categorically similar to abortion only because the Constitution does not have anything to say about it. Ergo, after first deciding that the public was incapable of working out things for ourselves, willful judges could give same-sex marriage the imprimatur of constitutional protection only by contriving a loopy theory — or, to be more precise, by further stretching a loopy theory, “substantive due process,” that they had previously contrived.
That theory now stands discredited, as it should be. The notion that due process, the body of rules we follow to protect our rights, has a substantive component (i.e., it somehow defines the rights it protects) was always flimflam. The Dobbs court restored constitutional order. Henceforth under the 14th Amendment, whether as a vestige of substantive due process or as a resuscitation of the long-dormant privileges or immunities clause, unenumerated rights will not be given constitutional status unless they are (a) “deeply rooted in the Nation’s history and tradition,” and (b) “implicit in the concept of ordered liberty.” That standard is drawn from the court’s 1997 decision in Washington v. Glucksberg (which declined to find a constitutional right to assisted suicide).
Importantly, under our law, the fact that a legal test is clarified does not mean we throw out everything that was established under the prior distortion of that test. Obergefell thus remains the law. For how long?
Forever, I reckon.
Yes, it would be implausible to argue that same-sex marriage would be a constitutional right under the Glucksberg standard. But what matters, jurisprudentially, is that Obergefell is a binding decision of the Supreme Court. Lower courts must follow it, and Dobbs made clear that the Supreme Court has no stomach to revisit it. Even if the justices did revisit Obergefell, they would be apt to uphold it on stare decisis grounds — the doctrine under which precedents, even if wrongly reasoned, are retained because reliance on them is so widespread that correction would create more disruption than it solves.
More significantly, what matters jurisprudentially is now of less consequence than what matters culturally. That’s the lesson of Dobbs.
In 2010, 6 out of 10 people in the United States opposed same-sex marriage. But in 2015, when Obergefell was decided, that had
reversed
, with 57% in favor. Now, the approval rate is
over 7 in 10
, and it is apparently rising. That is to say, if politicians tried to prohibit same-sex marriage, they would stand to be routed. That makes court challenges less likely. It makes the chance the Supreme Court would even agree to hear a case challenging same-sex marriage, let alone overrule Obergefell, microscopically small.
That “concept of ordered liberty”? You can’t have it without the liberty part. Trust self-determining people to govern themselves.
Andrew C. McCarthy is a contributor to the Washington Examiner’s Restoring America page, a contributing editor at National Review, and a former federal prosecutor.
