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Saturday, June 27, 2015

The Supreme Court's gay marriage decision destroys the concept of tolerance, conflating it with approval, which is a near opposite

It's a huge error, and one that just lost us the battle for Islamic hearts and minds. The appeal for tolerance is moral and right. A demand that society approve of homosexual relationships is morally insane, and will destroy whatever moral standing we had to appeal on the world stage for tolerance of homosexuality.

Homosexuals have a right to be tolerated but no one has a right to approval and marriage is society's stamp of approval, thus the only legitimate path to gay marriage is through majority support, a path that SCOTUS has now cut off with their Obergefell v. Hodges decision. To do it they annihilated the distinction between tolerance and approval, which is the foundation of all of our liberty. Five half-educated lawyers who don't even grasp the distinction between tolerance and approval are completely oblivious to the magnitude of the pillar that they just removed from our system of liberty.

It's like knocking out a bottom corner of the Empire State building to make room for some extra parking. They have absolutely no idea what they have done, and homosexuals, who will always be a very small minority, utterly dependent on the tolerance of society, will suffer as much as anyone by the Court's destruction of the principle of tolerance. Do homosexuals think that their need for tolerance is past? Have they looked at the world recently?

Tolerance is in for the fight of its life and yet our system of law, at the very highest level, has suddenly wadded it together with approval, which is a near opposite. It is not tolerance to abide what you approve. Tolerance is abiding what you don't approve, and that is the one thing necessary for pluralism to exist. So we have this stab at the heart of pluralism, just as the totalitarian communists, feminists, and other groupists in the U.S., and the totalitarian Islamofascists everywhere, are ascendant in their power.

Tolerance has taken a huge hit, with implications far beyond this one issue. We now no longer have a coherent legal concept of tolerance to defend. How are we going to sell tolerance to the Islamic world when we have just declared that it means approval, that to be civilized according to our understanding of natural right Muslims don’t just have to stop throwing homosexuals off of rooftops but that they have to give their blessing to homosexuality and consecrate homosexual relations with their rites of social and religious commitment?

Sorry, but that declaration is wrong, and the Court’s assertion that it is right just lost us the battle for the hearts and minds of the Muslim world. If the Court was right then losing Muslims would be okay. If we have to have WWIII with these people then we have to have WWIII. Follow right and let the chips fall where they may, but we followed wrong. Natural right demands tolerance, not approval, and nothing could be more basic. The violation of our own fundamental principles here is immense and will be debilitating.

Scott Walker's facebook post on the Supreme Court's sudden invention of a right to gay marriage

My remarks above were composed as a comment on Walker's post, which I think is very good. Here is Governor Walker's opening paragraph:
I believe this Supreme Court decision is a grave mistake. Five unelected judges have taken it upon themselves to redefine the institution of marriage, an institution that the author of this decision acknowledges ‘has been with us for millennia.’ In 2006 I, like millions of Americans, voted to amend our state constitution to protect the institution of marriage from exactly this type of judicial activism. The states are the proper place for these decisions to be made, and as we have seen repeatedly over the last few days, we will need a conservative president who will appoint men and women to the Court who will faithfully interpret the Constitution and laws of our land without injecting their own political agendas. As a result of this decision, the only alternative left for the American people is to support an amendment to the U.S. Constitution to reaffirm the ability of the states to continue to define marriage.
Yes, the issue must be left to majority rule. As Governor of Wisconsin it is fully appropriate for Walker to assert the primacy of state majorities. National majority-rule could also be legitimate, and given our Constitutions's "full faith and credit" clause (that "Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state), a national majority decision may be required, but when decisions can be lived with locally then the more local majority rule affords more liberty and is preferable on that basis.

Walker also correctly identifies one of the key legal points: that what the Supreme Court has done is change the definition of marriage. This fact vitiates the Court's equal protection argument. Homosexuals have always had an equal legal opportunity to marry someone of the opposite sex (the millennia-old definition of marriage), but what they wanted was something else entirely new, something that no one else had ever had before: legal sanction for marrying someone of the same sex (a new definition of marriage). But the equal protection clause cannot redefine marriage. It can only require equal treatment for the same activity engaged by different persons, not between different activities engaged by different persons.

I'm surprised to find myself agreeing with Huckabee about anything, but he also nails this one:
This ruling is not about marriage equality, it’s about marriage redefinition.
This is the difference between gay marriage and the old laws against interracial marriage, which the Court rightly struck down in Loving v. Virginia. In Loving interracial couples were being denied the ability to marry a chosen mate of the opposite sex. They were not seeking to redefine marriage, only seeking equal access to marriage as it had always been defined. Redefining marriage is something altogether different which goes beyond the scope of the simple concept of equal protection.

Loving does deserve some of the blame for the current debacle, but only because the Supremes were not prescient in that case about how liberty rights to engage in intimate relationships were about to become dis-entangled from the institution of marriage.  I come back to this history in the last section of this post.

The distinction between tolerance and approval derives from John Stuart Mill's distinction between "direct" and "indirect" interests

My 2009 essay, "Gay marriage is not a right," explains how the principle of maximum equal liberty (arguably implied by the "inalienable rights" of the Declaration of Independence) give rise to John Stuart Mill's famous principle of liberty, where "direct interests" (interests that impinge physically on a person's liberty or security) must take complete priority (what modern moral philosophers might call "lexical priority") over indirect interests (vicarious interests in what other people are doing or in what others think about what you are doing).

This distinction between direct and indirect interests gives rise in turn to the distinction between tolerance and approval, so the lexical priority of direct over indirect interests (necessary for the securing of maximum equal liberty) becomes in turn a lexical priority for tolerance over approval.

Approval interests (such as the homosexual interest in gay marriage) are to be given zero weight against the need for tolerance (or direct liberty interests). Thus for instance, even if homosexual marriage were to be granted social approval via legitimate means (by majority decision), it still could never justify punishment for those who refuse to participate (by baking cakes, conducting ceremonies, etcetera). Toleration of that personal preference must take absolute precedence over anyone demands for approval.

The connection to Mill's distinction between direct and indirect interests is well worth going into (the link above) if you are interested. Legal analysis does not get to these moral-philosophical fundamentals, thus is no surprise that five Supreme Court justices, who know nothing but legal analysis, and clearly do not care very much about even its principles and warnings, would turn out to be so incompetent when they start trying to identify unenumerated rights. They need to know a lot more than they do and have a lot more circumspection, but the relevant moral philosophy is clear, and shows the right answer, if we follow it.

Ideally we should seek to articulate the maximum equal liberty implied by the inalienable rights of the Declaration, but if it is adopted as a legal protection it should be adopted by amendment.  In very limited fashion and only when necessary it might be legitimate to use the inalienable rights of the declaration to help discern the unenumerated rights of the Ninth Amendment. What the courts should obviously never do is proclaim unenumerated rights that go directly against the maximum equal liberty implied by the Declaration, as the Supreme Court has done by conflating tolerance and approval (direct and indirect interests) in its Obergefell decision.

Indications are that the Court, after wadding tolerance and approval together, will next get the priority between tolerance and approval backwards

It isn't just that gay marriage, not even considered legitimate by any but a tiny fraction of politicians just five years ago, is now asserted to be required, it is that everyone whose religious beliefs bar them from participating in such marriages are now under threat of compulsory participation.

This is the subject of the Walker's last facebook paragraph, and the powerful statement from Texas Governor Greg Abbott. Both promise to vigorously enforce all existing state legal protections for religious freedom so that constituents will not face legal liability for refusing to be personally involved with gay marriage, a concern that has been raised by a wave of suits under state-level pro-gay-marriage laws, and a concern which SCOTUS pointedly failed to allay. As noted by Ed Morrissey at Hot Air:
Kennedy, who brought up the topic, could have written explicitly that houses of worship and individuals have a First Amendment right not to participate in these ceremonies. That issue has been raised on a number of occasions in the courts. The absence of any such language sends a very disturbing message on religious freedom, in this and many other contexts.
Without understanding the lexical priority of direct over indirect interests, and the lexical priority of tolerance over approval that derives from it, the Court going forward will have no basis for getting this priority right, or even recognizing that a distinction between tolerance and approval needs to be made. Indeed, given all they have gotten wrong, we can be pretty sure that the follow-on questions are going to be decided just as egregiously.

And so here we are, where support for the tiny minority of homosexuals, who are utterly dependent on the tolerance of society, has been transformed into a political-legal war of extreme intolerance for those who do not approve of their relationships. It is a complete inversion of the necessary priority of tolerance over approval, led now by the Supreme Court of the United States, and if it is not reversed it is going to destroy this country, which had until now been the leading light of liberty in the world. Suddenly we are looking more and more like just another fount of unprincipled illiberalism.

As so often happens, Justice Thomas is the only one who gets the basic issue right

Thomas's Obergefell dissent does not make the distinction between tolerance and approval but he does makes a closely related distinction, noting that protected liberties have never been taken to include rights to government provided entitlements, as the particular emoluments of legal marriage status (and the government provided stamp-of-approval), can properly be classed.

Tolerance (liberty) takes absolute priority over all other concerns, be they claims of entitlement or demands for approval.

Statement by Grant Starrett on the Obergefell v. Hodges decision

Grant Starrett, now running for Congress in Tennessee, also has a nice statement on the Supreme Court's terrible decision:
If we desire to live in a constitutional republic, we ought to start recognizing its boundaries. The Constitution has power because the sovereign American people affirmed a particular interpretation at the time that its language was passed. I challenge the notion that any drafter of the 14th Amendment, much less the Framers of the Constitution, possibly imagined, in their wildest dreams, that what they were writing would require that every state give marriage licenses to same sex couples. Unfortunately, five unelected lawyers have overridden the will of the 80% of Tennessee voters who approved a constitutional amendment guaranteeing traditional marriage. I fear the vast implications of activist judges, unmoored from the original meaning of our Constitution, imposing their agenda through reinterpretations of our founding documents.
Exactly right, and together with the Obamacare decision (Burwell v. King) where the Court now asserts the power to rewrite any law so as to better suit the law's stated objectives (the very core of legislative activity), the Court has deligitimized itself in a way we have never seen before.

Justice Scalia says of the Obamacare decision (which interpreted-away the fully intentional limitation of subsidies to state's that created their own Obamacare exchanges):
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government.

Loving v. Virginia and the untangling of liberty rights from marriage over the last 50+ years

If there is no right to approval, or to receive society’s stamp of approval via state sanctioned marriage, why did the Court in Loving declare that:
Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. 
The California Supremes made a similar declaration in 1949, eighteen years before Loving, when they struck down California's ban on interracial marriage:
Marriage is thus something more than a civil contract subject to regulation by the state; it is a fundamental right of free men.
These declarations were not unreasonable in their time. In 1949 access to the institution of marriage was very much a liberty interest of couples because sex outside of marriage was illegal in pretty much every state of the union. That is, the law did not tolerate those sexual relationships that the state did not approve via the institution of state sanctioned marriage, and things were not much different legally in 1967.

Those were the bad old days, before the nation made so much progress in enforcing toleration for non-approved relationships, but with the Court’s 2003 ruling in Lawrence v. Texas, striking down the criminalization of homosexual sex by the State of Texas, there has no longer been any criminalization of adult sexual relations outside of marriage anywhere in the United States. That removes most of the individual liberty-rights aspect from marriage, leaving mostly the approval aspect.

Established liberty of contract eliminates most of the other liberty issues surrounding marriage. Unmarried heterosexual and homosexual couples (or groups) can agree by contract to pretty much any sharing of income and property that they want, including terms for dissolution. Such contracts may have been off the table when the relationships themselves were illegal, but now that they are legal, these contracts can be entered.

There are some weighty other complements to marriage, like the ability to adopt, but there are good reasons why society might not want to allow homosexual couples to adopt. Adoption is certainly a strong interest, but it involves third parties that keep the issue from being a matter of right for couples who may want to adopt. Thus relational liberty rights are pretty much all protected outside of marriage now, leaving not much exclusively to marriage except for society’s stamp of approval.

It was never technically correct for the courts to say that there was a right to marriage. There was a right to the liberty interests that were once bound up with the institution of marriage, liberty interests that have since been separated from the institution and protected independently of marriage. One can understand the earlier courts' conflation of marriage with liberty rights, given that marriage and liberty rights were in fact tied together within the marriage laws and within the whole society's understanding of marriage at that time, but that conflation belongs to the past. The liberty-rights aspect of marriage—the ability to live together and be intimate and make a life together—has already been secured without couples having to be married, leaving mainly the social approval aspect of marriage as the exclusive domain of the married.

This situation is recognized in Justice Scalia's argument that marriage is not a freedom at all but a restraint on freedom (his argument #7 here). This is in fact the situation today. There was a time when the liberty to have sexual relations and to live together as a couple was tied to marriage, but now marriage confers no liberties that are not available to the unmarried, only obligations and restrictions.

History thus proves that marriage and liberty rights are not necessarily tied together, and that to be accurate they should have been separated by the Loving and California courts. Marriage itself was never a right. The only rights at stake in these cases were the liberty rights that were at that time bound up with marriage, but have since been separated from marriage.

The second problem with the earlier cases, especially Loving, is that their invocations of marriage as a “basic” and “fundamental” right do not actually do any work. Loving was fully decided by the simple principle of equal protection, which applies the same whether the law in question restricts a right or grants a privilege. It didn’t actually matter in Loving whether anyone has a right to marry. Once the state allows some male-female couples to marry it must allow any adult male-female couple to marry, absent some compelling state interest, such as the avoidance of genetically transmitted disease. The invocations of a right to marriage were completely unnecessary in these cases and hence moot. They are dicta masquerading as acta.

Thirdly, marriage was certainly not recognized as a basic individual right until very recently. For most of recorded history, including Western history, an offspring’s freedom to marry was very much subject to parental authority, at least until the offspring had gotten beyond the normal marrying age, and religious authority was also in play. If a given marriage violated church principles then it would not be performed. These may have been matters of private choice, outside of government control, but that does not mean they were matters of individual right.

So Loving and California were not just putting forth flowery dicta masquerading as acta, they were putting out historically inaccurate dicta. The individual liberties that they were proclaiming as historic and fundamental were in actuality liberties that were receiving legal protection for the first time, under the handy excuse of the need to equally protect these supposedly longstanding liberties.

It was a nice trick, and was part of the advance of individual liberty in intimate affairs, which was a wholly legitimate objective, and with the decision in Lawrence v. Texas was fully achieved. But to take the next step, as the Court just did in Obergefell v. Hodges, and demand approval for what is finally being tolerated, is to turn this whole advance of liberty on its head.

We are now back to the bad old says where only what is approved is tolerated, except now approval is not determined by majority rule but by a small minority, the keening demands of 4% of the population, backed by five unaccountable loose-cannon ideologues in robes. 

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