NOTE: I wrote this article after the Obergefell decision was handed down by the Supreme Court. I was going to update it, re-word a few sentences, and add
a couple of paragraphs, but I decided against that. The argument being made and the point I am getting at is well documented in the original piece.
For those that will disagree with the content of the article, please offer counter arguments and I will do my best to address concerns.
The Obergefell decision handed down by the Supreme Court has been anything but uncontroversial. Progressives advocating for "marriage equality" are celebrating the decision as an obvious win for tolerance and justice, and in the words of President Barack Obama, view our Union to be "a little more perfect." So it should be expected that they are relishing this victory. With regard to a social agenda, it should come as no surprise that progressives are not concerned with judicial overreach. They have absolutely no problem whatsoever with a Leviathan federal government operating in the form of judicial activism when ruling in accordance with their political, social, and moral philosophy. Decisions that run contrary to their views, however, motivate them to re-write the Bill of Rights. This is a blatant disregard for the basic structure of federalism and the constitutional separation of powers between the three co-equal branches. For progressives, the ends justify the means, even if the rule of law and the constitution are set ablaze, and trampled under foot for added effect.
Joining in the progressive jubilee, are the new libertarians.
How can this be? Aren't libertarians ideological enemies of the big government progressives? The majority of conservatives recognize this decision as an egregious overreach of power by the Supreme Court. New libertarians are fond of claiming that conservatives love big government, and even worse, social conservatives look to force their morality on non-adherents. If this is true, how is it that libertarians are in bed with the progressives they claim to be enemies of, while it is conservatives who are championing limited government?
The reason for these allied interests is the result of the same flaw within both progressive and libertarian political philosophy - the myth of moral neutrality.
Libertarians are very critical of "social" conservatives. The term "social" is a rhetorical tactic seeking to impugn conservatives with a pejorative that tilts any discussion regarding ethics and public policy towards the "neutral" position. But there is no such thing as a "social" conservative. To attach "social" to the label "conservative" is redundant. Why? Because all political philosophical positions are "social" or "socially" motivated. This is true of the conservative, and it is true for the libertarian. In fact, this is what engaging in politics entails; politics is the organizing and shaping of society according to a socio-economic perspective informed by metaphysical and moral foundations. The conservative does this openly, and is honest about their views with regard to "forcing" their morality on people. This isn't an exercise in arbitrary subjective pleading. Conservatives are committed to a worldview they believe to be true, and consequently, seek to shape society as a whole in accordance with the inherited political institutions governing such decision-making.
So understood, the libertarian is no different than the conservative. They are just as socially motivated as the conservatives they deplore. They too, are seeking to organize and shape society according to a socio-economic perspective informed by metaphysical and moral foundations. The only difference is that their metaphysical foundation is unexamined, and their moral philosophy has been truncated to contractual consent.
A key difference between the conservative and the libertarian has been highlighted in the Obergefell decision, which is a difference of respect toward political institutions and the decision making process when seeking to make or change law. Noticeably absent in the federal constitution is the power of the judiciary to redefine marriage among the several states. Noticeably present is the text of the 10th Amendment, which reserves for the states the power to decide important moral questions through the democratic process in accordance with the state constitutions. This process, reserved for the states, has resulted just as you would expect in a pluralistic society - the citizens of some states have chosen to enshrine a conjugal definition of marriage in their constitutions, while other states have chosen to expand or redefine the definition of marriage to include homosexual couples. It is also important to recognize that just because one generation of citizens has chosen a specific definition of marriage, does not mean the next generation will do the same. This is the purpose of the democratic process. This procedure leaves the decision making process closest to the citizens which are impacted most. Of course, this is merely a description of the procedure, and not necessarily an endorsement of it.
The libertarians of "Being Classically Liberal" agree with Justice Kennedy's decision, and argue that marriage is nothing more than a contract. Thus, to limit access to this contract by allegedly arbitrary categories is a violation of basic rights recognized in the 14th Amendment. First, the 14th Amendment has nothing to do with marriage, which has been argued here (source below), here (source below), and here (source below) . Second, the article referenced above claims that gender or sexual orientation with regard to limiting marriage rights is as arbitrary as outlawing interracial marriage. This is a categorical mistake. Racial limitations with regard to marriage are agreeably arbitrary and false. This much can be agreed upon as dictated by decency and common sense. Gender and sexual orientation, however, are not arbitrary qualifications. After all, it is the sexual union of man and woman which eventually leads to children and the family, resulting in the advancement of civil society in perpetuity. One doesn't have to be a fundamentalist Christian to agree with this; a person could come to the same conclusions based on an entirely secular evolutionary argument. This point can and has been debated, but it would seem ridiculous on its face to claim that it is arbitrary. Finally, to declare marriage to be nothing more than a contract between consenting adults is to champion a specifically libertarian definition of marriage. Others disagree, and view marriage to be something more than a mere contractual relationship, and these people sought to organize their society in a way reflecting those values. New libertarians, however, cannot tolerate such dissent.
In this particular instance, new libertarians morph from limited government advocates, to progressives who grovel at the feet of Big Brother. Contrary to their rhetoric, the libertarian is celebrating judicial activism via the Supreme Court to force their metaphysical and moral commitments onto a group of individuals that disagree with libertarian political philosophy and their reductionist definition of marriage. The decision handed down by Justice Kennedy doesn't argue that people have a basic right to a contract, but a fundamental right to a specific kind of contract, namely, marriage. This decision does not "get government out of marriage"; rather, it is an increased intervention by government into marriage. This decision does not say that a marriage license can be defined in any way a person sees fit; Justice Kennedy has forced a redefinition of marriage onto those who would have otherwise chosen differently. Libertarians, the champions of choice, have staked their claim against choice. For the new libertarians, you are free to choose but only if your choice isn't conservative or religious.
The Obergefell decision intensifies two important debates in our country. First, is the social moral debate surrounding the definition of marriage and the family etc. Contrary to some, this decision is not going to transform the discussion on marriage into a non-issue; it is going to magnify it exponentially. Just as the Roe decision did nothing to alleviate the debate surrounding abortion, the Obergefell decision is going to do absolutely nothing to alleviate the debate surrounding marriage. Second, this decision highlights the myth of moral neutrality with regard to public policy and moral philosophy. Libertarians can no longer pretend to be morally neutral when debating domestic policy. To do otherwise is an act of duplicity. Aligning themselves with the unconstrained vision of government exposes their true colors - new libertarians are progressives hiding behind the curtain of moral neutrality.
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