During the oral arguments preceding the Obergefell v. Hodges decision that granted same-sex couples a constitutional right to marry, some of the judges who ultimately sided with the majority reflected on an expansive notion of democracy that recognized the vote of people who are no longer among the living. Justice Kennedy commented that heterosexual marriage “has been with us for millennia. And it’s very difficult for the court to say, ‘oh, well, we know better’.” At the same time, Justice Breyer expressed the matter even more emphatically, stating that marriage restricted to members of the opposite sex “has been the law everywhere for thousands of years . . . and suddenly you want nine people outside the ballot box to require States that don’t want it to change what marriage is to include gay people. Why cannot those states at least wait and see whether in fact doing so in the other States is or is not harmful to marriage?”
These comments represent a concept of democracy far wider than the single swing vote of Justice Anthony Kennedy (or any of the other four justices who sided with him) and echo the insightful thoughts of Edmund Burke and G. K. Chesterton. In his monumental work, Reflections on the Revolution in France, Burke wrote about “a partnership not only between those who are living, but between those who are living and those who are dead, and those who are to be born.” In his Orthodoxy, Chesterton viewed this expansive notion of democracy in the context of the received tradition: “Tradition means giving votes to the most obscure of all classes, our ancestors. It is the democracy of the dead. Tradition refuses to submit to the small and arrogant oligarchy of those who merely happen to be walking about. All democrats object to men being disqualified by the accident of birth; tradition objects to their being disqualified by the accident of death.”
Nonetheless, Kennedy and the Majority eschewed both tradition and concern for future generations and voted as an “arrogant oligarchy” of five. Why did they do this? Kennedy claimed that Constitution asserts that “the right to marry is a fundamental right inherent in the liberty of the person . . . couples of the same-sex may not be deprived of that right and that liberty.” And thus, the autonomy of the individual takes precedence over the wisdom of the ages.
Burke dismissed autonomy (the “sovereign individual,” as he called it) as a “foolish abstraction”. He saw the individual human being as limited, imperfect, finite, and highly dependent on others: “We are afraid to put men to live and trade each on his own private stock of reason, because we suspect that this stock is small, and that the individuals would do better to avail themselves of the general bank and capital of nations and the ages.” If two heads are better than one, would the innumerable millions of individuals over millennia not be better that a quintet of unelected lawyers? Nonetheless, private autonomy, as in the Doe v. Wade decision, held sway.
This notion of autonomy, however, which is not to be found anywhere in the Constitution, is part of the new mythology. The autonomous person does not exist, except in the minds of romantics (but even Superman was susceptible to kryptonite, and Achilles had a weak heel). If such a creature actually existed, he would surely be of sturdier mettle than what he is in the minds of prosecuting lawyers. Shortly after the Obergefell decision, two same-sex couples began legal action, with the support of the American Civil Liberties Union, against a Kentucky clerk for failing to marry them. The ACLU claims that “Plaintiff and Plaintiff Class have suffered and continue to suffer irreparable harms, including harms to their dignity and autonomy, family security, and access to the full spectrum of benefits conferred by the state upon others.” One would think that autonomy would be made of “sterner stuff”. Did Kennedy himself really believe in the autonomy of the individual? He stated that unless same-sex couples were allowed to marry, they would “be condemned to live in loneliness, excluded from one of civilizations oldest institutions”. So much for the alleged “gay community”. One would not suspect that “gay pride” participants had been condemned to loneliness. On the other hand, why couldn’t the aggrieved couples simply go to a more willing clerk to get married?
As frail as this notion of autonomy is, in reality, it nonetheless generates a second myth, that of the infallible chooser. Indeed, if a person is autonomous, he should be able to choose whatever he wants. In fact, as Justice Roberts wrote in dissent, “The truth is that today’s ruling rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that it would disparage their choices and diminish their personhood to deny them this right.”
The third myth, following on the heels of the previous two, is that we can construct an ideal world where no one suffers disappointment, frustration, or ever having his personhood diminished (whatever that means). Those who defend traditional marriage, it should be noted, are not permitted to enter this brave new world. Recalcitrant clerks everywhere should be sued. The current utopian dream, however, based as it is on the illusion of autonomy and irresponsible choices, could hardly provide the fabric for a perfect society. As democracy reels into mythology, the need for a more realistic view of the human being, his moral obligations, and the real world he can inhabit becomes increasingly urgent. Mythology is no replacement for democracy. That government of the people, by the people and for the people is now being transformed into that government of the complainants, by the elite and for the minority.
Dr. Donald DeMarco is a Senior Fellow of Human Life International. He is professor emeritus at St. Jerome’s University in Waterloo, Ontario, an adjunct professor at Holy Apostles College in Cromwell, CT, and a regular columnist for St. Austin Review. His latest works, How to Remain Sane in a World That is Going Mad and Poetry That Enters the Mind and Warms the Heart are available through Amazon.com.
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