Preface: The title of this post, which was not the original title I had intended, comes from the fact that I can only post to WordPress today underneath a rainbow banner. It’s there, on the screen, staring at me. Perhaps it’s there to remind me that I should be celebrating, or admonish me for not doing so.
There aren’t a lot of good reasons to read Obergefell v. Hodges in full. The majority opinion, which accomplishes what those with eyes to see long knew was coming, is an embarrassing mishmash of half-baked “legal reasoning,” ambling prose, and metaphysical flourishes. Justice Scalia pilloried the Supreme Court’s rhetoric in his dissent, and both Chief Justice Roberts and Justice Thomas had a great deal to say in their respective dissents about how far off the legal rails the majority, led by Justice Kennedy, has taken the Court and the country. Justice Alito closed out the 103-page long opinion with a lamentation of sorts for what the Court’s actions mean for not just the American political system, but those Americans who continue to oppose same-sex marriage. Here’s an excerpt:
Today’s decision usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage. The decision will also have other important consequences.
It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. . . . The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.
Perhaps recognizing how its reasoning may be used, the majority attempts, toward the end of its opinion, to reas¬sure those who oppose same-sex marriage that their rights of conscience will be protected. . . . We will soon see whether this proves to be true. I assume that those who cling to old beliefs will be able to whisper their thoughts in the recesses of their homes, but if they repeat those views in public, they will risk being labeled as bigots and treated as such by governments, employers, and schools.
Alito is dead right about this. A brief perusal through social media sites like Twitter and Facebook reveals just how quickly rejoicing can shift into gloating, finger pointing, and recrimination. I heard many people lauding Obergefell in public yesterday and almost no one questioning it. And if questions were raised, they focused squarely on whether or not the Court had the right to usurp the democratic process. That “meta criticism” is a safe one, or at least the safest one available. Too much pushback against the Court’s wild interpretation of the Fourteenth Amendment is a clear sign of potential bigotry, especially given all of the “enlightened rights” the Court has been able to tease out of that text for decades running. When it came to discussing what the Court’s ruling means for American society writ large and the highly successful socio-political movement behind that ruling, well, such chatter can only be conducted in hushed tones behind closed doors. The Klan can’t rally in the open anymore.
