The Aftermath of Obergefell

For every person jubilant about the Supreme Court’s recent usurpation of power at the hands of the people in Obergefell, there is another person who is equally, if not more, despondent. Obergefell and its predecessor Windsor highlight the clash in our jurisprudential culture about the role of the Supreme Court, the disparate worldviews of the citizenry, and the competing rights that are destined to collide: Will John’s newfound fundamental right to marry Bob stand alongside Mary’s freedom of conscience or will one yield to the other? While victory parades and rainbows dominated the airwaves post-Obergefell, the chatter that took place in homes and among friends was barely audible -- “old beliefs” whispered in the “recesses of [our] homes” fearful of what might ensue if expressed publicly, just as Justice Roberts predicted.

Judging by the rabid victors who intend to jail non-compliant pastors in Idaho and deny tax-exempt status to non-compliant churches -- let alone the rash of suits against business owners who refuse to facilitate gay weddings on the basis of their convictions -- it seems the rainbows and the old beliefs cannot co-exist. It’s more likely that our antiquated First Amendment freedoms will be pushed aside by the wily “right to same-sex marriage” that has been closeted inside the 14th Amendment since 1868 and the Bill of Rights since the Founding. Who knew? It seems only the most evolved. But the silver lining, if there is one, is that millions of those old believers will not “go gentle into that good night” but instead will “rage against the dying of the light.” In other words, the gloves are off. Republicans have responded with a cornucopia of legal and political devices. Senator Mike Lee and Representative Raul Labrador have crafted the First Amendment Defense Act -- legislation worth pursuing with the understanding that subsequent Congresses can repeal it and the president can veto it de jure or de facto (as we have seen with DOMA and federal immigration laws that have not been enforced). Pundits and scholars have suggested we work to elect candidates who will appoint proven conservatives to the Court -- but we know from O’Connor, Kennedy, and now Roberts, that there are no guarantees. Senator Ted Cruz has proposed “retention elections” for Supreme Court justices and others have suggested term limits. Mark Levin and former Senator Coburn continue to push for a Convention of States under Article V. Talk has surfaced about making it easier to impeach Supreme Court justices. Finally, John Eastman sees the Lincoln approach in the Dred Scott case as a possible weapon, where the Scotus decision is binding only on the particular parties to that particular case. But let’s not jump the gun. We don’t want to arm the enemy with our own artillery. With the exception of the first two, each of these proposed remedies can just as easily be exploited by the left against conservatives. Given that the left is far more nimble than conservatives when it comes to mobilizing and organizing -- with more money and less time -- their deployment of these weapons will be far more lethal than anything our wishy-washy leaders can muster. There is another alternative but it will require commitment. We control both houses of Congress and should take advantage of that power by pressuring our representatives to pass a constitutional amendment defining marriage and protecting First Amendment freedoms. And those freedoms should extend to citizens who are not formally affiliated with any religion, atheists, and agnostics who adhere to traditional Judeo-Christian values. It’s never easy to pass a constitutional amendment but it’s a lot easier than convening an Article V Convention. However, constituents must relentlessly confront their representatives, take to the streets and make a lot of noise, withhold funding and GOTV support, and threaten to vote for other candidates who will honor the will of the constituents. Our representatives are duty bound to vote according to the wishes of their constituents. If that conflicts with their personal views and they cannot fulfill their duties, they should resign rather than vote their conscience. That so many vote this way is sobering evidence that representative government has journeyed through the memory hole. Tremendous momentum exists across the country for such an amendment -- the voters who approved traditional marriage laws and amendments in 30 states did not disappear. But we have our PR work cut out for us: we have to reassure the public that millions of Americans are pro-civil union, pro-religion, and anti-redefinition of marriage, and any expression of such beliefs will not result in the attenuation of their civil rights. Most importantly, we must be loud and proud and stand together, forming a protective legal, political and cultural barrier around anyone who is victimized. In the meantime, pay no attention to the pundits behind the curtain who tell you that the country has changed but you haven’t the heart to understand the gay plight, the brain to comprehend the injustice, or the courage to evolve like the others. Yes, the views of the American public have changed somewhat and the young do overwhelmingly support gay marriage. But tens of millions oppose having gay marriage forced upon them by judicial fiat and do not support it being forced on any faith or any person of faith who refuses to commercially participate in such ceremonies. Many are reluctant to speak the truth in polls out of fear of retribution and are often given the false choice between complete marriage equality or no marriage and no rights (even though those issues can be resolved by contract, power of attorney, civil unions, and laws that have already been changed). Prior to Windsor, 30 states had traditional marriage amendments. After Windsor, the legal and political winds shifted: if a federal law like DOMA violated the Constitution and was the direct result of bigotry and hatred (by an overwhelming majority in both Houses and President Clinton), then parallel state laws could never withstand constitutional scrutiny. So, legislatures and courts in 11 states took it upon themselves to void the will of the people and legalize gay marriage. But the people have the final say -- not five insular justices on the Supreme Court. Still, weak-kneed Republicans are already admonishing us to “move on” -- Scotus has spoken! They want gay marriage off the table for the next election so that it won’t be exploited by leftwing opponents and media to their electoral detriment. But that is naïve! The left will no more let go of this campaign “gotcha” question leveled only at conservatives, any more than they let go of abortion, the war on women, and racism. Heed this: If the GOP ignores or pays mere lip service to this issue -- promising to address it when they secure the White House in 2016 -- they will lose millions of grassroots votes. After the elections of 2010 and 2012 -- when the Tea Party, the GOP base, the grassroots and the establishment worked hard and somewhat collaboratively to elect Republicans -- we were told little could be accomplished without the Senate, despite our congressional victories. Fair enough—those were the political realities at the time and change comes slowly. So we set our goals on and succeeded in taking the Senate in 2014 but with little to show for it: the Congress has failed to take decisive action on campaign issues that motivated people to show up at the polls like ObamaCare, entitlement reform, tax reform, the budget, education, and national security. Instead, we have TPP and TPA -- something nobody campaigned on and of little immediate concern to the average Joe -- handing more power to a corrupt Executive at a time when we should not be doing anything to make his job easier. Politics is war and our leaders -- who hold all the cards -- are playing patty-cake with their new friend in the sandbox. And now we are told they cannot do anything about their campaign promises until we gain the White House in 2016. As the goal posts continue to shift, millions of GOP supporters feel like they’re getting the shaft. The last 6 years have demonstrated to conservative troops that our leaders in DC haven’t a clue how to wage a political war. The president can veto any bill passed by the Congress -- Duh! But that shouldn’t stop us. Any veto and any Democrat vote against any proposed bill popular with the masses has tremendous utility in this war and should be deployed as weapons against the enemy in the 2016 election. Debates in Congress and the public square are opportunities to make our case and we should wage massive ad campaigns in the press, on TV, radio and the internet. This would diminish the left, educate the public and cultivate good will with conservative ground forces who will otherwise turn their backs on the “same old same old” from GOP leadership and candidates. We can no longer allow our politicians to dump on the very people who put them in office and pay their salaries. When Republicans start joining the progressive cartel of experts telling us they know better, then it’s time to shake things up. This is why candidates like Carly Fiorina (love her), Ben Carson (love him but he won’t be elected) and even Donald Trump (not a fan) are so attractive to so many people -- they are not part of the political machine and they fearlessly speak to kitchen table concerns, recognizing that the dining table responses of our leaders don’t cut the mustard. They hear what the people are saying. For too many elections, the mantra has been any R is better than any D. But, when the people we elect do not work on our behalf but only on behalf of themselves, we have no choice but to send them an unambiguous message, even if the electoral consequences are dire: if the base cannot rely on you, you cannot rely on the base.