Why I'm Not Celebrating Obergefell

My Facebook timeline is awash with people who have chosen to rainbow-ize their profile pictures in solidarity with yesterday's momentous Supreme Court decision, Obergefell v. Hodges. In truth, I'm very happy for my gay and lesbian friends, who may now enter into marriage in all fifty states. And yet, the truth also is, I don't feel much like celebrating with Andrew Sullivan, who posted his first entry after announcing his retirement from blogging back in February. For all that the profoundly conservative gay marriage movement has succeeded in extending acceptance to homosexuality, I find the manner with which it was accomplished to be deeply troubling, and for reasons that Sullivan orbits but never quite touches on:

I remember one of the first TV debates I had on the then-strange question of civil marriage for gay couples. It was Crossfire, as I recall, and Gary Bauer’s response to my rather earnest argument after my TNR cover-story on the matter was laughter. “This is the loopiest idea ever to come down the pike,” he joked. “Why are we even discussing it?”

Those were isolating  days. A young fellow named Evan Wolfson who had written a dissertation on the subject in 1983 got in touch, and the world immediately felt less lonely. Then a breakthrough in Hawaii, where the state supreme court ruled for marriage equality on gender equality grounds. No gay group had agreed to support the case, which was regarded at best as hopeless and at worst, a recipe for a massive backlash. A local straight attorney from the ACLU, Dan Foley, took it up instead, one of many straight men and women who helped make this happen. And when we won, and got our first fact on the ground, we indeed faced exactly that backlash and all the major gay rights groups refused to spend a dime on protecting the breakthrough … and we lost.

In fact, we lost and lost and lost again. Much of the gay left was deeply suspicious of this conservative-sounding reform; two thirds of the country were opposed; the religious right saw in the issue a unique opportunity for political leverage – and over time, they put state constitutional amendments against marriage equality on the ballot in countless states, and won every time. Our allies deserted us. The Clintons embraced the Defense of Marriage Act, and their Justice Department declared that DOMA was in no way unconstitutional the morning some of us were testifying against it on Capitol Hill. For his part, president George W. Bush subsequently went even further and embraced the Federal Marriage Amendment to permanently ensure second-class citizenship for gay people in America. Those were dark, dark days.

I recall all this now simply to rebut the entire line of being “on the right side of history.” History does not have such straight lines. Movements do not move relentlessly forward; progress comes and, just as swiftly, goes. For many years, it felt like one step forward, two steps back. History is a miasma of contingency, and courage, and conviction, and chance.

Which is to say, what it really took, frankly, was this:

Gay marriage is nearly as accepted as heterosexual marriage, and among millennials, the numbers are an avalanche, approaching 80%. It is popularly accepted as a right, and therefore acceptable to defend. Justice Anthony Kennedy's opinion for the majority cited four major reasons for accepting the plaintiff's case: individual autonomy, right to intimate association, safeguarding children and families, and marriage as a foundation of American social order. But ironically, it's Justice John Roberts who chooses deference to politically expressed preference in social order. "It can be tempting for judges to confuse our own preferences with the requirements of the law."

It is ... about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law.

 Which is to say, we have a Supreme Court Chief Justice who believes that rights are subject to popular review. The same man who, in Obergefell, wrote "this Court is not a legislature" only the day before in King v. Burwell felt it meet to substitute policy aims over the literal text of the Affordable Care Act — i.e. to act exactly in the place of a legislature. And if Obamacare isn't exactly popular, it's apparently not unpopular enough for the Republicans to deliver a viable alternative — or for the Court to overturn it. In both cases, Roberts counsels deference, which is to say, he advocates for a kind of slow-motion, legalistic mob rule. For anyone familiar with the historical treatment of homosexuals, Jews, blacks, gypsies, and any other hated minority, that is a deeply terrifying prospect.