Americans today are getting a crash course in the liberty we give up when we create bureaucracies and let the executive branch grow without restraint.
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.
J.E. Dyer’s articles have appeared at Hot Air, Commentary’s “contentions,” Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard online. She also writes for the new blog Liberty Unyielding.
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The Optimistic Conservative 
Hell, Opticon, while you are spot on in just about everything you are saying here, the awarding of government benefits has corrupted much more than the courts and our judicial system; it has corrupted the whole nation.
I think it is tragically funny that we worry and cluck about over some self-serving groups giving out cigarettes in front of voting pols or worry over a couple of dollars given out to a few homeless to elicit their vote while we chose to ignore how our own politicians, our Congress and our Executive branch buy the nation’s votes daily with hard-earned billions of dollars from the pockets of hard working citizens.
Sometimes I think that we are striving to beat the Venezuelans and others like them at the dirty game of loading the democratic dice.
Pitiful and sad at the same time…
If I’m one of those states that doesn’t (yet) have a SSM law, I would be inclined to quickly pass a civil union law – where SSM couples receive the same benefits as regular married couples, but the state doesn’t consider them “married.” (I would also include in the law specific prohibitions on any future permission of polygamy and also of legal unions involving non-humans, which as crazy as it sounds is something that may very well creep up on us). This may be the only way left to protect a semblance of traditional marriage given the nature of Kennedy’s majority opinion.
The Professional Left (PL) will surely go apoplectic about this and angrily call civil union laws “homophobic” or some such nonsense. But it’s pretty clear to me that the PL isn’t nearly as interested in gay rights as it is in redefining the institution of marriage altogether for its political benefit. But if all couples are receiving the same govt benefits, the Left is going to have a hard time forcing SSM on these “civil union” states, given the nature of this SCOTUS ruling on DOMA.
Kennedy’s reasoning just removed ALL legal basis to deny legalization of polygamy or any plural marriage groupings among non-related consenting adults.
Justice Kennedy writes that the Defense of Marriage Act:
“…imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.
The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others.” (my emphasis)
Just substitute ‘polygamous arrangements’ or ‘plural marriage groups’ for the emboldened “same-sex couples” wording. Leave every other word intact and show me how the same reasoning does not apply in arguing against the two-person limitation in ‘marriage’. By that reasoning, to ‘outlaw’ plural and polygamous marriages is inescapably unconstitutional discrimination.
You may be correct that government should not have gotten involved in the definition or regulation of marriage. But it would be very hard to backtrack from this longstanding approach. A myriad of government benefits and tax deductions depend on the marriage relationship, as well as state laws on wills, estates, inheritance, liability for debts, testimonial privileges, etc.
But, Vinnie, I did NOT say government should not have gotten involved in defining or regulating marriage.
What I do suggest is that the FEDERAL government should not administer benefits that accrue only to married people.
States may or may not find valid reason to proffer such benefits. But why must the federal government?
In most cases where federal law posits the marriage relationship, I suggest that the law should be changed so that marriage is neither privileged nor de-privileged. We should simply not have a federal inheritance tax, for example. Get rid of the tax, and you get rid of the reason for distinguishing between wives or husbands and other legatees.
I don’t see a valid basis for changing the laws on spousal testimony, so that could remain a problem. But the overall point is that we back ourselves into these “inequality” situations with each increase in the way government intervenes in our lives.
Note that it was NOT something like spousal testimony law that bootstrapped SSM into the courts. It was a list of marriage benefits — positive benefits, not merely exemptions from legal mandates — which the federal government need not offer, to enhance the commonweal, and which in most cases it has no business offering.
So, does the federal government not award any benefits to spouses, or any special tax treatment? What about military housing allowances and benefits eligibility for dependents? Are they all off the table because states may define marriage differently? Are same sex “spouses” in CA entitled, but not same sex partners in NV?
Of course, you are right that federal benefits was the hook by which DOMA got to the Supreme Court. It was also the hook by which Congress could arguably have any power to legislate on the marriage relationship, which was considered a state issue. Absent a federal interest, Congress (we hope) would have stayed completely out of the arena.
Few people have raised the point, but did the Founding Fathers think they were prohibiting a law like DOMA when they wrote the Fifth Amendment Due Process Clause?
Of course, the federal government doesn’t give special tax treatment to spouses (in the alternative vision of government). Tax law isn’t some immutable thing whose burden can only be lifted by according taxpayers special treatment. Married couples shouldn’t have to pay a marriage penalty, but no one would pay a special “penalty” if we repealed the 16th amendment and taxed consumption instead of income. It’s easily possible for government to function while not even knowing what anyone’s income is. Just think of all the paragraphs we could dispense with in the US Code, if the federal government didn’t tax income.
Military housing allowances could be made marriage-neutral; many of them go to single parents already. Alternatives would be to raise pay, calibrate the allowances by rank, or make housing allowances dependent-neutral.
Or not. A marriage recognized in a state could be the basis for awarding benefits. But note that military benefits apply only to those whom the federal government has a legitimate reason to employ. That’s the real point here. The federal government and its opinions do not need to reach into every corner of our lives and dictate how the whole nation sees every social issue under the sun. What the federal government does about military family benefits need not become a law of “God” on bronze tablets to which the whole nation is bound to bow down.
It is perfectly possible to conceive of governmental arrangements in which New York recognizes SSM but Texas doesn’t, and neither does the federal government. If one “spouse” joins the military or the foreign service, he has to forego job-related benefits for his “spouse.” Same if he moves to Texas. If Texas requires fewer job-related benefits in general than New York does, he may have to forego them anyway.
I am well aware that legislation and case law — as well as our education system — have sought to enforce a different view of this matter in the last seven or eight decades. But that doesn’t mean the view is either correct or unchangeable. It’s one partisan party’s view of how things should be: the federal government should enforce uniform national opinions on social issues, and should, in particular, be able to force the people to CHANGE their views.
I’m saying it shouldn’t — and that one of the important ways we deny it the power to do that is to keep its charter very, very small.
J.E.,
The law is already being used by the left as a bludgeon against political opponents.
In addition, the Prop. 8 ruling is far more impactive than you appear to grasp.
The Supreme Court’s ruling in Ca. Prop. 8 essentially eviscerates the initiative process for any Proposition with which the left disagrees. As when a Proposition is passed and an activist federal judge rules that the initiative is unconstitutional (they shopped for a judge who would rule as they desired), in a state governed by a liberal/leftist Governor and legislative body, who are willing to practice selective enforcement of the laws, while also refusing to defend initiatives it disagrees with, what now results is the people have no standing before the Supreme Court.
Essentially a state’s majority of its citizens now have selective redress of grievance and that selective redress is determined by the Governor/Attorney General’s willingness to defend initiatives it disagrees with when a Proposition is ruled unconstitutional.
This ruling tied together with the ‘Comprehensive Amnesty Bill’, in which up to 33 million new “undocumented democrats” gain the franchise, together with voter fraud in key swing states… will guarantee one party rule in America, in perpetuity.
We are witnessing the selective disenfranchisement of more than 65 million Americans. Effectively, we will no longer have a vote.
GB — the court cannot legitimately decide not to hear a new challenge to the merits of the earlier Prop 8 decision, based on what happened with this one. The SCOTUS action on Prop 8 turned on standing; the merits of a Prop 8 case may have been prejudiced — IF the courts see themselves as bound to consider the intemperate language of the separate DOMA ruling in their deliberations (which they may legitimately ignore) — but they have not been eviscerated. Indeed, proponents of Prop 8 are already planning their next challenge.
You are correct, of course, that the left wants the Prop 8 outcome to be seen in the light you outline.
I know how the law is already being used. But you’re not the only reader I write for. Many people are only now coming to realize the implications of what we have allowed government to become, and to do, over the last 100 years. I’m trying to reach them at teachable moments, when what unfolds in front of us illustrates a principle about the use or misuse of government. Some of it may seem basic and tardy to a person who has been following the drama with understanding for decades. But a lot of people are only now waking up, and it’s important to highlight for them how the principles play out. They may never have seen it clearly before.
You all are paying way too much attention to the fudgepackers back home.
Anybody but Hillary. Get to work.
Actually, jgets, this is important, because of the implied power of government in the whole SSM issue.
We are no longer in a condition in which we have simply strayed a bit, in a sometimes erratic orbit, from the normal centerpoint of American liberty and government, and now just need to get back to it. If we had elected Romney in 2012, we MIGHT be able to say we were in that condition, and that we just needed some tweaking of law and government to get our orbit corrected. It would depend on what Romney was really doing about Obamacare, the EPA, etc.
But we are no longer in orbit around the American “centerpoint.” It’s clearer to me each day that many people sense that — perhaps most of them — even if they can’t articulate it.
It won’t correct our deteriorating condition to merely elect “anybody but Hillary” — nor can we even accomplish that, if we don’t have a reckoning on where law and government are headed. We have to talk about it. The point here is not the social issue itself, although that is important. The point is what it means about government, and the destruction — not the erosion, the destruction — of our liberties, if government is to be wielded as if it can unwrite the basic facts of human nature.
If it can be used for that purpose, it can be used for anything, including appointing some of us to die and others of us to be slaves. People who still think we’re in a steady state will be amazed at how quickly all semblance of moral boundaries will evaporate, if there is no pushback against law and government being wielded in a corrupt and overweening way.
The Supreme Court didn’t rule on the constitutionality of traditional-marriage law. That is the most important fact out of all of this, and no one can beat Hillary in 2016 who doesn’t clearly see and affirm that. The voters know that “less of same” isn’t the answer anymore. Unless we DECIDE to seek change, in ourselves, the public dialogue, and the nature of the political debate, the Democrats will win every election until the day when elections don’t even matter anymore.
Noted Optcon. I’m not very good at, or have much patience with, legal issues of this nature that have ramifications concerning our liberties and the power of goverment. For me it’s just a given that marriage is the union between a man and woman. Homosexuality exists, it is a fact of life. I would not harbor any objection if some form of civil union was devised for them. I just can call it marriage.
What I do know is if we, we being the center to the right, cannot present a appealing alternative to the mainstream/independent voter, a positive message, we will not win any more presidential elections.
Anybody but Hillary was my way of saying we must put aside our differences. Some will have to water down their wine more than others, the price of not doing so is certain defeat at the polls.
Aw hell, I’ll even keep my mouth shut about Sen. McCain from now on. If, it helps preventing a further irrevocable slide to the far left and statism.
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TO jgets: I just can’t wrap my arms around the wishful concept that McCain could actually slow down the slide leftwards or even our tumbling headlong into…gasp!…socialism. After all, McCain hasn’t done much of either from his Senate seat. By the way, I know you know that.
But, even more importantly than that, McCain, or anybody else for that matter, can’t slow anything down too much because I think we are already there and slowing down won’t make a bean hill of difference.
We are already a socialist country. And, please, let’s not start to quibble about degrees, inches or fractions in terms of whatever our actual level of socialism really is. Socialism, like rape, cannot be measured or justified morally by discussing the inches of penetration or the numbers of slaps, punches, kicks or date-pills that it took to subdue the unfortunate and unwilling victim. Rape is rape just like socialism is socialism.
Therefore, what’s needed, in my opinion, is not someone that can slow the path towards that leftist pipe dream called socialism, that empty promise that some of us dislike so intensely; socialism is already here. In fact, it is the persistent background subject that we discuss in almost every post here at “The Optimist Conservative” and over at “Liberty” as well. So, that said, what we really need are politicians that are actually capable of reversing or moving us out from this position into which we have elected ourselves over the past 100 years or more.
TO: ALL: I also agree with Opticon that most if not every single one of our tax exemptions have been fabricated or contrived with the single-minded purpose of purchasing votes from self interest groups. And, let’s face it, heterosexual married couples, to name that one in the context of this SSM discussion, belong to one of those groups. We have all been sold on the false premise that tax exemptions, all six million thirty three of them, are fair and needed to help people along. But the real truth is that nothing about the current tax code is either fair or needed.
Now, with a fairly high degree of irony mixed in, the homosexual lobby is also claiming their right to plant that “fair and needed” flag in their club-house; or should I say their coffee house as well.
Fate is inexorable and we deserve everything that is coming down the pike for having been so selfish and willfully blind to these encroachments into our liberty when it was us that benefitted from the many government concessions and “handouts”. A flat, everybody-pays-the-same consumption tax would be the answer to those corrupting influences and, by the way, also a very strong argument to justify that this would indeed be the fairest way to deal with funding the government and the best way to include and involve every American in America by following the letter and spirit of “Everybody is equal under the law”. A principle that we have all been led to believe is the engine that runs our system.
Or is it instead that a heterosexual married couple is to be awarded the special consession that makes them less involved and therefore less responsible for the running of our government than, say, a single, working 30 year old man living alone?
Or, to illustrate the present state of affairs with a slightly different focus: Is a very successful and very rich single man MORE invested in the running of the government than a middle class family of four? And, if the answer to that loaded question is “yes”, by virtue of how much more he pays into it, of course, then why should he not expect to be awarded more benefits and more privileges than a middle class family that pays less? After all, is that not the sound and more logical way to run a business? An airline? A hotel? A restaurant? A jewelry store…? ‘Pay more, get more’ is an undeniable rule of business transactions. Who has ever heard of a business that can succeed and grow by promising its customers that “the more you pay, the less you’ll get from us”? Yeah, I know, the government does it all the time. But that doesn’t make it right or fair. They, sly foxes that they are, get away with lulling everybody to sleep by changing the offering slightly and telling us that “the less you pay, the more you’ll get from us” and calling it compassion.
A flat tax will never happen. Washington will never allow it. It would defang the politicians and it would render them incapable of dealing out special concessions to American voters and to American big money in exchange for their votes and contributions. To call that synergy a conflict of interest would be an understament. To call it corruption plain and simple would be quite accurate.
So, sorry to bear bad news to all of you but we are already “there”, folks. The sooner we realize it the sooner we’ll stop believing and hoping that we can “slow things down”. What we need is to radically change as a people and as a nation. Anything less than that will just end up being a fatal distraction.