(NB: disclaimer: I am neither an attorney nor student of public law. I am merely an aspiring scholar of political theory. My views express the unspoken and unreflective views shaping our political, moral, and religious values. As such, I offer no analysis on the two cases but only suggestions on what we would do well to reflect upon.
The two cases being heard by the SCOTUS this week has prompted supporters of both traditional and gay marriage to take their politics to the core of public life in America: social networks. But in all the talk about the emotions we have for our loved ones, gay or straight, few if anyone seems aware that these court case represent a fundamental breakdown in democratic politics and illuminate a limitation in modern liberalism.
A major tension in these disputes is rooted in divergent conceptions on the meaning of liberty and right. Advocates for a redefinition of marriage ground their position in our common understanding about fairness under the law; they argue that denying gay and lesbian couples the protection of the law constitutes a miscarriage of justice and does violence to our public image of a nation conceived in liberty. Defenders of traditional marriage, on the other hand, point not only to universal truths about the human family, the raising of children, and religious liberty but also to precedent wherein advocates for gay marriage have used new laws to suppress religious expression. In turn they argue that redefining marriage disincentivizes couples from staying together because it endorses in law a belief that parents are optional for children and grave societal harm will necessarily follow when we rearrange social institutions. <And while many may be tempted to disaggregate support for gay marriage and say, the health and human services mandate for contraception, social conservatives see little distinction because in the daily experiences of politics, the same people promoting gay marriage are often the same people seeking to prevent Christian adoption agencies from operating unless they violate their consciences and place children with same-sex couples.> Most troubling about the dispute is the belief by nearly everyone that it be fought extra-politically, in the courts rather than through state and national legislatures.
Ultimately what we are talking about here is a breakdown of the liberal arrangement instituted by the Founders. Consider for a moment that American politics as conceived by the Framers would consist of various competing interests groups would compete with each other in the forming of public policy. But the competing groups would be tempered by the the institutional framework we all know as checks-and-balances. For those who are unfamiliar with e specifics, let me briefly survey what the Framers had in mind: in the Federal government, the house which represents small geographically homogeneous districts would constitute the vox populi, debate would be vociferous, partisan, and benefit the states or regions with large populations. The Senate would represent collections of house districts, and since Senators originally were elected by their state legislatures, debate would be moderate, biased toward compromise, and would level the power relationship between large and small states without giving small states a disproportionate advantage. The president, serving the nation writ large, wields strong influences in the law-making process by endorsing, frustrating, or vetoing new bills. To add even more complexity to the mix, the Bill of Rights includes a provision stipulating a role for individual states because any power not directly given to Washington remains within the purview of states and the people. The arrangement results in a more or less grid-locked national government since, even one party could gain the presidency and both houses, the margin of victory would be narrow enough in a sufficient number of offices to encourage, require, compromise.
Institutions–and the faith that the right arrangement of them can serve as the “republican remedy to the vices of republicanism,” to use Madison’s phrase–is not found in political theory with any real seriousness until Hobbes. It was Hobbes who, following other early modern philosophers, broke with the ancient and medieval view that political life is inherently a noble enterprise, and that, the true statesman is he who can bring law into agreement with the conditions of the time, and thereby establish or maintain regimes that bring its citizens to the virtuous life. For Hobbes, the aim of politics is to neutralize conflict so that individuals would be able and willing to enter into a social contract. Without government to enforce agreements, establish law, and protect citizens, we would be ensnared in his famous bello omni contra omna, and any sense of living, yet alone living well, would not be possible. Institutions then serve as the great pacifier of human violence by redirecting conflict out of the public sphere. Only once the public sphere is pacified of conflict of any sort–since any sharp disagreement between people could give rise to violence–can the cool, dispassionate business of public administration begin.
The congenital flaw in Hobbes, however, is two-fold: first, it presumes that once institutions are established, the law will shape society and mores in such a way that citizens will not seek to tinker with law and the constitutional framework of a nation. Second, it misses what is most pressing in the hearts and minds of civically engaged people–viz., Justice. Let me take them up in order. Carl Schmitt is a strong critic of Hobbes because as Schmitt describes, the primary distinction in politics is between friends and enemies. When sketching out how groups divide into friends and enemies, Schmitt argues that the final criterion is when dispute between groups rises to the level of an existential threat. When this threshold is crossed, even your local bowling league or PTA becomes politically self-aware and motivated to act in whatever ways are afforded to bring about or preserve the vision of political life each group holds. Careful readers of Hobbes, Madison, and Schmitt will note little difference in their views about Man’s tendency toward conflict. Where Schmitt breaks is that he is unconvinced that institutions are as effective as Hobbes and Madison believe.
But lets return to Justice. Justice is a high and noble aim but brings with it political hazard because it motivates people to act on their beliefs even against great and seemingly overwhelming odds. The actions of men me women whose understanding of justice is rightly ordered inspire, move, and transform us; and tragically, the opposite kinds of actions leave us dejected, appalled, and angry. We only need consider the comparative deeds of Martin Luther King Jr. and Timothy McVeigh. Both men were acting on what they believed in their heart of hearts what just, but one committed a terrible evil, the other a praiseworthy good. The problem for us, however, is not how to compare the extremes of ordered and disordered justice but rather how to adjudicate the competing claims of seemingly otherwise respectable but mutually exclusive understandings of justice?
This finally brings us back to where I began, to the breakdown of liberal democratic politics. What troubles me is not that America is supposedly trampling on the rights of the minority, nor that we have reached the tyranny of the minority who is hell bent on tearing apart the fabric of America. No, what troubles me is that everyone wants to settle the dispute through the courts; fairness under the law has become the despotism of legalism. But you might object that nothing is harmed when proceeding through courts, that we must fight for our specific cause because there is no other way to ensure absolute victory. Now perhaps I exaggerate the psychological motivations of engaged politicos, but I think that I understate my case.
Because, and this key, when we believe that the courts decide things we breakdown the inner workings of liberal democracy in a number of ways. First, we renege on the social contract by effectively signaling to our political opponents that we are no longer interested in maintaining the status quo. Second, we openly admit that we refuse to compromise because if we lose our fight in the legislative process we will pursue other means to achieve our ends. Third, we deny our children and theirs the opportunity to participate in the maintenance of our constitutional order because we seek our permanent solutions to the issues that chide us.
Defenders of traditional marriage and advocates for change both are guilty of this though to sketch out how in each case would take considerable time. At the very least it should be pointed out that advocates for gay marriage where the first to pursue the legal over the political in part, I suspect, because they did not see much hope of success otherwise, but politics as in life changes fast, resulting it was seems to be reversal of preferences–traditional marriage advocates see the courts, now as the last defense against against a rapid change in public attitudes; and their political adversaries thinking the change in public attitudes would suggest a turn to the legislatures because courts could rule against the view they are seeking.
The takeaway here is that this lawfare view of politics is not a healthy turn, and we all should be mindful of the risk such practices bring with them. It may grate our sensibilities when our side loses–whichever that side may be–but that is both a crucial element of the kind of politics we agreed to in modern liberal democracy and easier to tolerate than losing more concrete, absolutist court cases that cut against the democratic ethos.