Why Pretend?

This week will be remembered as an important one in the history of this country, a very good week for most people on the left and a bad one for most on the right. For the second time, the Supreme Court protected the Affordable Care Act from a legal challenge that would have crippled it. The following day the Court ruled that gay Americans have a Constitional right to marry.

The ruling in the health-care case was a clear rejection of narrow Scalian textualism, a theory of statutory interpretation that has had great influence in the past couple of decades. Many would argue—along with the four dissenting Justices—that the ruling in the marriage case was a rejection of judicial restraint, a principle sometimes confused with textualism. As John Roberts reminded us this week, there is a difference

For most supporters of same-sex civil marriage, what mattered most was not the process but the outcome. That is understandable. When it comes to matters of the greatest personal urgency, most people are procedural pragmatists. They'll wait for a legislative victory if they have to, but if they can get what they want from the courts, they'll take it.  Proponents of same-sex marriage will no longer have to wait for the legislative process to catch up with public opinion. That might have taken years, and since there seemed to be little doubt about the final outcome—since it was only a matter of sooner or later—why not get it over with? Why make gay couples wait for democracy to slowly run its course when we could all see where it was headed. That, at any rate, was the pragmatic argument for having the Supreme Court settle this. (I don't say that was the only argument.)

Meanwhile, opponents of Obamacare will have to figure out how to get rid of it politically, having failed again to get the Supreme Court to kill or maim it for them. This means they'll have to wait for at least one more election.

The GOP response to the marriage decision has not been uniform. Many Republicans are eager to put this controversy behind them as quickly as possible so that they can concentrate on the truly important things: repealing Obamacare and cutting taxes. It is useful to compare the range of views about same-sex marriage on display at the National Review with the much narrower range of views about the Obamacare decision: the flagship publication of the American right, though generally opposed to both decisions, makes room for supporters of same-sex marriage (Charles C. W. Cooke, Reihan Salam), while speaking with one hoarse voice against Obamacare. This contrast confirms the view that today's GOP is less a conservative party than an anti-government pro-Market party. Capitalism über alles.

Among a smaller group of social conservatives, who all lament the decision in Obergefell v. Hodges, there is a wide range of opinion about how best to respond to it. Most of that range finds expression in a symposium posted yesterday on the website of First Things. There you will find battle cries, cris de coeur, better-than-nothing gestures, a few desperate fantasies, Hauerwasian calls to heighten the contradictions, as well as calls to batten down the hatches (aka "the Benedict Option"). You will also find some graciousness and wisdom. The whole symposium is worth reading.

And if you want to know—or just be reminded—why most American will welcome this decision, you could do worse than watch this New York Times video. For many, this was not about Constitutional theory or the burdens and perils of democracy. Nor was it about sex. It was about honoring people who promise to take care of each other and encouraging them to keep that promise.

In my view, the Supreme Court got it right in one of these two cases and wrong in the other, and only one Justice got it right both times—Chief Justice John Roberts. Roberts's view of the Court's function is duly modest. At his confirmations hearings, he famously compared the job of a Supreme Court Justice to that of an umpire calling balls and strikes—adding that no one goes to a baseball game to watch the umpire. The analogy was widely mocked at the time. To many observers, it seemed evasive, more dodgeball than baseball. And let's face it, Roberts has sometimes acted like much more than an umpire, most notoriously in Citizens United. Still, the analogy was not a bad one. We don't go to a game to watch the umpire and, more to the point, we don't want the umpire helping the other team win; in our better moments, we don't even want the umpire helping our team win. Wherever possible, the Supreme Court should try to get out of the way, so that voters and their elected representatives can do the difficult work of democracy. If we want to change the definition of civil marriage so that it can accommodate gays and lesbians, there is nothing in the Constitution to prevent us, but neither is there anything to compel us. Why pretend otherwise? As Roberts wrote in his dissent

Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition.

Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

Matthew Boudway is senior editor of Commonweal.

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