Consider these points:
1. The appeal for California’s Proposition 8 was thrown out because of an issue of standing for the defendants (i.e., the backers of Prop. 8 – who, it will be remembered, stepped in to continue the appeals process after the original backers dropped out). The last ruling of the lower court is being allowed to stand, but the issue itself – the constitutionality of defining marriage in traditional terms – has not been ruled on by the Supreme Court. The Court didn’t say that it’s unconstitutional for a government authority or the people themselves to define marriage in traditional terms.
2. What was ruled on was the federal Defense of Marriage Act (DOMA). And in spite of the contumely with which the majority-opinion justices wrote about supporters of traditional marriage, the existence of bureaucratically administered government benefits is the fact on which SCOTUS’s ruling actually hinged. The justices didn’t rule on whether Congress can – constitutionally – decide not to recognize same-sex “marriage.” They ruled on whether federal law can deny federal marriage benefits to couples whose unions their states recognize as marriage.
Same-sex marriage (SSM) was bootstrapped in via the existence of the federal benefits. In their absence, it’s not clear the Court would even have ruled on anything relating to SSM in 2013.
If your response is, to paraphrase our recent secretary of state, “What difference does it make?” – you have just given powerful evidence of the overwhelming momentum of executive bureaucracies. The difference ought to be decisive. The method of awarding government benefits should not be a way of bootstrapping social issues into the federal courts. If the people want to make binding decisions on social issues, that should be done, in virtually all cases, at the state level or below, and through the people’s representatives.
But the bureaucracies and “governmentism” favored by progressive ideology have changed that. Government benefits do have the power to change how our laws work, and what happens in our daily lives, whether we want them to or not. Bureaucracies administer so many things now that the court system doesn’t even have to legislate from the bench. All it has to do is render an opinion on whether a laundry list of arcane benefits or regulations makes an “unconstitutional” distinction between citizens.
This amounts to a stealth method of ruling on all kinds of issues that ought properly to be decided by the people – or ought not to be decided by government at all – and on which, at the very least, the federal government should properly remain silent. This method allows the courts to uphold or overturn the ancillary provisions of regulation, without directly addressing the core issue involved.
Justice Antonin Scalia took his colleagues to task for stigmatizing the supporters of traditional marriage in the majority opinion (see link); he was right, and what he decried is bad enough. Jurisprudence will promptly become meaningless and wholly corrupt if it is about the justices’ view of the character and motives of those whose actions they rule on. The disease is communicable, and will rapidly infect all forms of law, regulation, and enforcement. Law will not be a protection for anyone, but a bludgeon to be used against factional opponents – or, indeed, against anyone else, according to the whim of whoever is in power.
But the evil of the DOMA ruling is compounded by the bootstrapping-through-regulation method it employs. Certainly, it can be considered cowardly for the justices to rule narrowly on the federal benefits while thundering sanctimoniously against the supporters of traditional marriage. If the justices want to take on marriage, they should take on marriage: have the debate on the constitutionality of recognizing only traditional marriage. They didn’t do that, although their ruling will be widely interpreted as if they did.
The corruption of our idea of law is well underway. But the people have set themselves up for this by suffering the bureaucracy of regulation and benefits to grow so enormously over the last 100 years. If we want the freedom to think and act according to our own beliefs, on the overwhelming majority of issues that neither break anyone else’s leg nor pick his pocket – and same-sex marriage is certainly one of those – we cannot let government metastasize as it has, for what were supposed to be “other” purposes. Big government is a minefield for every kind of liberty: intellectual, religious, economic, political. The more benefits we funnel through government, and the more we let it regulate, the greater will be government’s general power to overrule and coerce us. The two dynamics are inseparable – and it has always been foreseeable that they would be.
The flaws Scalia points out in the DOMA opinion (U.S. v. Windsor) may one day make it susceptible to reversal by a future court. But there is another factor the people can change while we wait for that. If the federal government did not administer benefits for married couples, this ruling never would have happened. If people have thought those benefits were necessary because it’s so expensive to be married and have children today, that too is because government regulates us and taxes us so heavily.
Nothing that has happened in the United States in the last century has happened in an unregulated condition, or because of a lack of government regulation. Indeed, every social and economic problem we face today is due, in large part, to the fact that government now does far too much. If government did less, most of the issues the Supreme Court ends up ruling on would not even exist.