The Constitution was not amended last week. But Congress, state legislatures, and the voters who elect them lost a great deal of power anyway.
Related: Complete coverage of the gay marriage ruling
Thursday’s Obamacare decision allowed the IRS, an unelected agency of government, to rewrite a federal law to mean the exact opposite of what it says. As we noted Friday, that ruling effectively canceled the input of Massachusetts voters who had derailed the law’s drafting process in a 2010 special election.
Friday’s ruling on same-sex marriage was far more sweeping. Working from the premise that evolving cultural norms shape the meaning of certain constitutional ideas and implied rights, five justices arrogated to themselves the right to determine what those cultural norms are — as opposed to letting Americans show how they have evolved on same-sex marriage by letting them vote for candidates who support it. Before the ruling, Republican Utah Sen. Mike Lee acknowledged that “sometimes in a democracy, the other side wins.” In this case, judicial intervention has prevented anyone from knowing for sure.
The notion of the high court as an agent of cultural change is nothing new. But given that marriage policy has always been the subject of state regulation, and given that a vigorous political debate as to its nature was well underway (with the gay marriage side clearly winning), the court had no reason or excuse to end that debate by fiat with a divisive 5-4 decision.
As Justice Samuel Alito noted in his dissent, “The only real limit on what future [Supreme Court] majorities will be able to do is their own sense of what those with political power and cultural influence are willing to tolerate.” It is hard to disagree that the court has left no limiting legal principles in place.
The dissents of both Chief Justice John Roberts and Justice Samuel Alito refer to the future faced by the substantial minority of Americans who will refuse to accept same-sex marriage as the real thing. The mere existence of same-sex marriage may not threaten them any more than the existence of homosexuality has in the past. But in the 10 years, during which the marriage equality movement has made nearly all of its progress in shifting public opinion, its rhetoric has rapidly evolved from “we’re not hurting marriage” to “anyone who disagrees with our issue is on par with the pro-segregation resistance of the mid-20th century.”
The campaign of intimidation has been effective, eliminating middle ground for those who might otherwise support gay rights without supporting the redefinition of marriage as well. The ruling was a big boost for those leading a cultural push to marginalize people who believe that marriage is what Christianity and social norms have always taught that it is.
Almost immediately after the ruling, the Harrisburg Patriot-News posted an editors’ note stating that “as a result of Friday’s ruling,” it “will no longer accept, nor will it print, op-Eds and letters to the editor in opposition to same-sex marriage.” It’s certainly the paper’s right to do this (although surely it did not react in this strange way to any other Supreme Court case —Citizens United, or Heller, for example). But if the journalistic guardians of the republic instantly scratch the itch to eliminate dissent, government institutions and politicians, who historically show far less restraint, cannot be far behind.
States that wish to send a message can begin with more subtle forms of harassment — for example by ruling that denominations that won’t perform same-sex marriages may not perform state-sanctioned wedding ceremonies of any sort. And as Roberts noted in his dissent, Obama’s solicitor general “candidly acknowledged that the tax exemptions of some religious institutions would be in question if they opposed same-sex marriage.”
But discrimination against religious believers, and the attempt to use government power to hound them to the fringes of society for their beliefs, can go far beyond the church doorway. The entire genre of “bake-that-cake-or-else” litigation demonstrates that anyone with a business somehow involved in weddings can expect a lot of grief in the years to come, unless legislators act now to protect religious freedom.
Such protections could have been assured by compromises involving simultaneous changes to state marriage laws, but the court has now ruled out this possibility.
How the debate over same-sex marriage and tolerance shakes out will be determined in large part by how the winners react. They can try to coexist with their fellow citizens who disagree, or they can dog them with litigation, public ridicule and harassment. As Alito noted, “Recalling the harsh treatment of gays and lesbians in the past, some may think that turnabout is fair play.” If so, America’s political debate is about to get as ugly and divisive as it ever has been.
