What is the State - and here I'm including state governments as well as the federal government - actually doing by claiming any dominion over any sort of marriage, and what right does it have to make any such sort of claim? Is it actually addressing what marriage is or is not, or is it only really addressing marriage to the extent that marriage occupies a place as a gateway to a number of political rights and financial benefits? In other words, should the State actually be addressing the rights and benefits that attach to marriage directly rather than using marriage as a convenient catch-all means of doing so and thus, in doing so, leave the kernel "marriage" at the center of these various rights and responsibilities alone entirely?
For just one example of this, could the State forbid medical institutions from granting or forbidding visitation rights based on marital status, thus addressing visitation rights while stepping over and leaving marriage untouched as a point of action entirely? It certainly does so on race already: medical visitation can't be granted or forbidden on the basis of race, and the State doesn't enumerate which races are valid visitors and which are not. It simply commands hands off race as a deciding factor.
Can the State establish a definition of marriage - any definition - without running afoul of the Establishment Clause in the First Amendment? How, or how not? For example, to establish a Catholic (or Methodist or Muslim) definition of marriage as a law of the land, federal or state, would seem to be a clear violation of the EC. But if so, what are we really left with talking about if the State claims a right to establish a secular,
non-religious alternative: how can the State even realistically describe the boundaries of that definition without implicitly invoking a prior,
religious definition? Or, again, is it the case that, rather than dealing with any sort of marriage, the State is instead merely expediently seizing upon a collective placeholder for a radiating series of rights and benefits it should more properly be compelled to address individually and directly?
In other words, ever since the pluralistic secular constitutional republic American State necessarily let go of a religious definition of marriage it has really only been gliding in free fall, holding on to a now-empty husk of the past. Constitutionally, it cannot return to any religious standard, but, at least logically, it seems to me, it can ultimately be forced to release its grip even on the husk it's still grasping
by forcing it to define exactly what the remnant it's asserting a claim to is. Anything it attempts, it seems to me, can immediately be argued as constitutionally discriminatory from one standpoint or another.
This seems to be the ultimate terminal logic of marriage within a secular constitutional republic to me as groups other than heterosexual couples rise to claim benefits radiating from it: if any
one standard for State-sanctioned marriage proves to be unconstitutional, then
all - that is, State-sanctioned marriage
itself - must ultimately prove to be unconstitutional, thus jettisoning the kernel junction "marriage" itself from the grip of the State entirely and back into its myriad private niches. Rights and benefits previously coupled to marriage must necessarily and subsequently be de-coupled: medical visitation, adoption, financial benefits, etc., etc, and addressed individually, separately, and discretely on their individual, separate, and discrete constitutional and legal merits.
Could some practical collective State property-inheritance-child harboring license subsequently re-evolve? It almost certainly would, but when it does it would (if conservatives insisted upon it) no longer have any connection with now entirely private marriage.
Thus, for conservatives and Christians, life will probably change, but not at all necessarily in the ways envisioned, and almost certainly not in the ways exploitative doomsaying parasites would want it to.
The implications of this to me are that, should conservatives assert themselves on these matters, and contra the completely bizarre cult of personal weakness and submission Rod Dreher is desperately attempting to inculcate in and cultivate among others solely in order to promote his book sales, the whole gay marriage issue might very well prove to be that turning point at which the modern pluralistic constitutional republic American State, at least, was ultimately forced to abandon any direct claims upon marriage entirely.
Even short of this, though, to what extent does whatever the State claim with respect to any version of what it chooses to recognize as marriage bind or even implicate conservatives? I can see one consequence: even threading the needle between accommodation laws (can't discriminate against gays as gays) and compelled speech (conservatives can't be compelled to celebrate SSM), the percentage of conservatives involved in wedding commerce might decline, primarily voluntarily at the hands of conservative vendors themselves. Beyond that, though, what actual compulsions could the State possibly level against conservatives? I've already argued extensively that the idiosyncratic personal and moral cowardice of Rod Dreher should be recognized as the worst touchstone possible for engagement in the public square. For just one example, the State can no more compel conservatives to call gay marriage marriage than it can compel pro-life advocates to call unborn babies fetuses. And whether conservatives refer to gay marriages as marriages remains entirely up to them. The only question becomes the courage of one's convictions. Rod Dreher is God's loud and public gift to us all of an example of what having none looks like.
In short, when I try to look at this whole thing closer up a whole host of crevices seem to open up to me through which conservatives can pursue action immediately serving our interests, at least so long as we don't allow ourselves to be seduced by self-appointed gurus of doom.
I'm sure other questions would come to me, but that's enough from me. Maybe some of you have some others of your own.
BTW, the SCOTUSblog coverage of this morning's arguments can be followed
here.
