A nagging question I’ve had while watching local businesses sued into oblivion for the Christian thoughtcrimes of their proprietors is: What will it take for liberals to finally have second thoughts about the way in which gay marriage is being legalized? Few dispute that it will be fully legalized, and probably soon, and probably by the Supreme Court. But would liberals, once assured of total victory, have any pangs of conscience about salting the earth behind them? No, it turns out–but we have finally discovered something that makes them nervous about the recognition of a right to same-sex marriage: the possibility that conservatives, especially Christians, might somehow benefit as well.
Along those lines, there is something deeply disturbing about Jeffrey Rosen’s otherwise insightful piece in the Atlantic on how the justices during oral arguments this week seemed supportive of the idea of there being a right to dignity, and that this dignity is being withheld from gay couples seeking to marry. It’s a smart essay in many ways, since Rosen picks up on something not many supporters of same-sex marriage pay attention to: the importance of the method and the reasoning by which gay marriage is ultimately recognized by the state.
Most supporters of gay marriage have held to an any-means-necessary outlook. Rather than trying to convince the rest of the public to catch up to the sudden majority in favor of gay marriage, they have been using mob McCarthyism to ruin the lives of those with whom they disagree, while also pressing the courts for a gay-marriage version of Roe v. Wade; that is, a court decision that would hand the left a victory but guarantee the issue would be polarizing and its adoption nondemocratic.
Gay marriage itself is on course for overwhelming acceptance. The only question is whether its legal establishment will be the beginning or the end of it as a contentious political issue. Liberals prefer it to be the beginning of a long fight.
That might not seem to matter all that much, but in fact it matters a great deal to the minority who oppose gay marriage. Were liberals to pursue the establishment of gay marriage in such a way as to prevent a Roe situation and thus end an acrimonious process, they would be incentivizing opponents to cooperate in their own ideological or religious defeat. But if religious Americans are made to understand that this is only the beginning of the fight, then they would be hugely mistaken to acquiesce. The message from the left is that once their premise is accepted, dissenting voices will be rooted out ruthlessly and with the full force of the state behind the witch hunt.
Which brings us to what is finally making the left nervous: any ruling that would legalize gay marriage but would also curb their ability to carry out those witch hunts. Rosen discusses potential swing justice Anthony Kennedy’s attachment to the dignity of the those before the court:
Justice Kennedy invoked the word “dignity” five times in the oral arguments; and other lawyers invoked it 16 times. It was central to the opening statements of Solicitor General Don Verrilli. “The opportunity to marry is integral to human dignity,” he began. “Excluding gay and lesbian couples from marriage demeans the dignity of these couples.” It was also one of the first words uttered by the plaintiff’s lawyer, Mary L. Bonuato. “If a legal commitment, responsibility and protection that is marriage is off limits to gay people as a class,” she said, “the stain of unworthiness that follows on individuals and families contravenes the basic constitutional commitment to equal dignity.”
Rosen gives us some jurisprudential and historical context on dignity, and concedes “the indignity and stigma that bans on same sex marriage impose on the right of LGBT citizens to define their own identities and to claim the benefits of equal citizenship.” But, he cautions, “constitutionalizing that injury with broad abstractions like dignity may lead to results in the future that liberals come to regret.”
Why might that be the case? Because of the dystopian future this could create: what if the courts decide that–gasp–conservatives also have dignity? Imagine the terrifying world in which conservatives are treated with dignity:
If dignity is defined so elastically, then conservatives (sic) judges might invoke it to strike down not only gun-control laws, but also other progressive legislation. Libertarian groups invoked the “sweet-mystery-of-life” my (sic) language in Casey to argue that the Obamacare healthcare mandate unconstitutionally violated the dignity and autonomy of Americans by forcing them to buy health insurance. In the future, cigarette smokers might argue that anti-smoking bans violate their ability to create an individual identity. And conservative Christian wedding photographers could claim that anti-discrimination laws compelling them to photograph gay weddings violate their dignity and ability to define themselves as conservative Christians.
And there it is. If the court recognizes a right to dignity, liberals will be forced to reckon with a situation in which conservative Christians are equal under the law. And that means they have dignity too.
To judge by the reaction, this might be a step too far for the left. But it’s instructive nonetheless because Rosen’s piece grapples with what happens when the winning team sets precedent: with great power comes great responsibility. Liberals may want to argue that people have a right to be treated with dignity by the state, and therefore gay couples’ right to marry should be anchored in constitutional law. But how comfortable are they with the idea that Christians are people too?