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June 28, 2013
Guest Opinion: Victory for equality will be net loss for liberty


(June 28 -- By Ben Boychuk, Special to The Bee)

The arc of the moral universe is indeed long, and it may bend toward justice eventually. But the arc of politics can be long, too, and it often bends in a much different direction.

Many Californians cheered the U.S. Supreme Court's rulings this week to invalidate a key provision of the federal Defense of Marriage Act and essentially void Proposition 8 on a technicality. Same-sex marriage is coming, as Lt. Gov. Gavin Newsom once notoriously declared, "whether you like it or not." The Bee's editors called the two decisions a "welcome victory for equality."

The decisions are a victory for a certain kind of equality, perhaps. As for how "welcome" they are, that remains to be seen.

Self-government took a big hit, however. And political discourse, already rank, will continue its slide into a toxic mélange of snark, subliterate vitriol and question begging. For all that, we have Justice Anthony Kennedy partly to thank.

Kennedy wrote the majority opinion in the DOMA case and a noteworthy dissent to the Proposition 8 decision. Had Kennedy and his four colleagues tossed out DOMA on federalism grounds, many conservatives would have been disappointed but few would have complained much. After all, conservatives tend to be great believers in the idea of states as "laboratories of democracy." And, as Kennedy pointed out, letting states define marriage is "of central relevance in this case quite apart from principles of federalism."

If only he'd left it there. For Kennedy and the court's liberal bloc, definitions may only be expanded, never narrowed or - in the case of traditional marriage - underscored. So they had to impugn motives.

"The avowed purpose and practical effect of (DOMA)," Kennedy wrote for the court, "are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the states."

Suppose a state decides -- as California has done twice -- that same-sex marriages should not be made lawful? The court didn't address the question directly, but the answer is clear from the rest of the opinion: "unquestioned authority" is a canard.

So, Kennedy writes, the law "places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple. ... And it humiliates tens of thousands of children now being raised by same-sex couples."

Justice Antonin Scalia - Oh, no! Not him! - wasn't wrong when he lamented in his DOMA dissent that it's only a matter of time before the court applies Kennedy's template to states as well.

Yet one of the great mysteries of our time is how Kennedy can reconcile his one-way view of state-sanctioned liberty with his vigorous defense of the initiative process. "The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around," Kennedy wrote in his dissent to Hollingsworth v. Perry, in which the court denied standing to voters defending Proposition 8 against a lawsuit neither Gov. Jerry Brown nor Attorney General Kamala Harris wanted to contest.

"Freedom resides first in the people without need of a grant from government," he continued. "In California and the 26 other states that permit initiatives and popular referendums, the people have exercised their own inherent sovereign right to govern themselves. The court today frustrates that choice."

In more ways than one!

What the court said, in effect, is that a crotchety governor or an arrogant attorney general can veto an initiative by refusing to defend it in court. You needn't be a fan of direct democracy or the initiative process - and I am not - to be bothered by all of this. Californians may be accustomed to the courts disregarding their votes; it's an even greater insult when elected officials do it. Kill the initiative, but kill it fairly.

Nowhere in all of these paeans to equality has anyone given much thought to the coercion - public and private - that will be necessary to make it a reality. Wait and see: equality's triumph will be liberty's loss.

The point was made immediately after Proposition 8 passed, when mobs descended on the workplaces of people who dared to give as little as $100 to the "yes" campaign. The mob mentality would be codified by Sen. Ricardo Lara's bill to strip the Boy Scouts of their tax-exempt status for having a personnel policy that Lara dislikes. "Discrimination!" Lara says. Freedom of association, I say. But no matter. Lara's bill is well on its way, having passed the state Senate overwhelmingly.

Expect champions of progress to sit by smugly as other antiquated freedoms wither. Free exercise of religion? Sure - just keep it in the pew on Sunday, pal. Freedom of speech? Maybe not for "bigots."

Supporters of traditional marriage may find some solace knowing there are no final victories in politics - a truth even so-called progressives grasp when it suits them. I'm 42 years old. My daughter is 5. If we both live to be 100, I doubt we'll see a resolution to these cursed culture wars, but I suspect we'll be less free.

Ben Boychuk is associate editor of the Manhattan Institute's City Journal. Reach him at

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