Justice Thomas and Justice Roberts faced a great deal of scorn in the days following their respective dissents in Obergefell v. Hodges. George Takei called Thomas—a Yale Law graduate from a poor sharecropper community—“a clown in blackface” for his suggestion that “human dignity cannot be taken away by the government.” Other liberals have similarly derided Roberts, albeit with less vitriol, alleging a misplaced faith in the democratic process. An opinion piece The Politic published on July 7 about the ruling claims that, in the political process, even the losers “know that they had their say” in “a fair and honest debate”:
I laughed out loud when I read this. A “fair and honest debate”? Is that what we’re calling the current state of affairs in Congress and in statehouses across America? I struggle to imagine that the authors of the Constitution would find today’s legislative government to be particularly democratic.
The author sees the majority opinion and judicial activism writ large as correctives to congressional gridlock. Her language evinces a near Hegelian faith in the Court’s ability to right social wrongs: “for the dissent to decry this judicial power is to pull the brakes on societal progress.”
But such criticisms ignore a long history of activism that had very little to do with legal arguments: far from impugning the dissent’s faith in democracy and open debate, last month’s landmark decision paradoxically vindicates it.
Historically, the Supreme Court has done little to advance the needs of the poor and the marginalized. Indeed, it has often done the opposite, much to the left’s dismay. Dred Scott v. Sandford and Plessy v. Ferguson reified a racist status quo, while more recent decisions have gutted critical provisions of the 1964 and 1965 Civil Rights Acts. In other cases, like Roe v. Wade, the Court’s attempts to hasten “progress” before Americans were ready for it backfired: recent polls suggest millennials are much less likely to support abortion than their parents. Whatever one thinks of the liberal-progress-is-inevitable thesis, it’s quite a stretch to assert that the Supreme Court has ever fully endorsed it or plans to do so for a sustained period in the future.
If an unreliable judicial body and dysfunctional Congress can’t be trusted with securing equal protection under the law, what can? Assuming the explosive success of the gay rights movement is any indication, the answer is simple: democracy and the civil liberties it entails.
Unlike abortion, gay marriage comes at a time when a clear majority of Americans—60% by most estimates—support it, up from just 35% in 2001. Between 2004 and June 25, 2015, 38 states had legalized same-sex marriage to some degree. Such sweeping legislative change came only after a great deal of social precedent. Andrew Sullivan and other LGBT activists have long attributed their success not to any single Machiavellian stroke of political manipulation, but to reasoned persuasion. Social scientists confirmed that gay parents could raise healthy and well-adjusted children; psychologists discredited pseudoscientific theories that categorized homosexuality as a mental illness. Most of all, popular culture became saturated with gay characters, actors, and parents. Gayness moved from taboo obscurity to the cultural mainstream, propelled by sympathetic media outlets and the openly gay individuals who took advantage of them (Ellen Degeneres, Neil Patrick Harris, etc.).
“Fair and honest debate,” when viewed in this light, earns its commendation from Justice Roberts. It is impossible to imagine Kennedy’s soaring language of “dignity” coming in the 1990s, when the nascent gay rights movement still struggled to convince America that sexual preferences couldn’t be chosen. But convince them it did. And it did so through mechanisms far too often disparaged by the modern left.
Freedom of speech permitted Mike Huckabee to dehumanize the LGBT community on national television, but it also enabled liberals to mount a fierce counter-cultural response to each incendiary pundit. Freedom of contract meant that ABC could cancel Ellen Degeneres but also ensured that wasn’t the end of her career. Freedom of religion safeguarded the rights of the Westboro Baptist Church, but freedom of assembly safeguarded the rights of the counter-protesters who refused to countenance bigotry.
Opponents of same-sex marriage had their day in the court of public opinion, where their arguments were systematically dismantled by activists, intellectuals, and comedians. Voters chose love over hate in states that put the question of same-sex marriage up to referendum. Anti-discrimination ordinances, though still far from perfect, gained ground where none had previously existed. The law followed the people, not vice versa. Gay rights had already won long before the Supreme Court consummated the victory.
In a campus climate dominated by PC idioms like “microaggressions” and “trigger warning,” we too easily forget that authentic, controversial, uncomfortable speech—like, at one time, a televised kiss between two men—has great potential to further the cause of human rights. Eliminating attacks on the status quo can appear desirable when, at Yale, the status quo consists of egalitarian morals and a culture of tolerance. But this has not been the case for most of American history. Without the right to say and do offensive things, America’s most vulnerable would be perpetually subject to established norms and mores, even if those mores warranted serious revision. A laissez faire marketplace of ideas cannot solve the world’s problems overnight, but it can, in a very literal sense, give a voice to the voiceless. Calls to circumvent state legislatures in the pursuit of justice are no doubt well-intentioned, but they entirely miss the point of a free society and representative government. And they fail to realize that reason and persuasion can, sometimes, overcome irrational bigotry and revulsion.
Roberts and Thomas may be on the wrong side of history, but their understanding of democracy and the freedoms it confers should not be dismissed as meaningless abstraction. Rigorous town hall debates, a free press, and the fundamental truth that gay people deserve the same rights as anyone else did much more to further the cause of equality than any legislative stamp of approval.
With that said, it’s hard for me to regret the court’s ultimate decision — sometimes imperatives of justice trump procedural orthodoxy. Nevertheless, I find myself drawn to the closing lines of Roberts’ dissent:
Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.
Maybe the Constitution does guarantee the “fundamental right” Kennedy identified. Or maybe it doesn’t. But one thing is certain: five liberal justices would not have found this right had they not been compelled to search it out. Before liberals celebrate the outcome of Obergefell, they should celebrate what made the case possible to begin with: the freedom to hold—and win—a fair and honest debate.