How US conservatives brought Obergefell on themselves

There is that peculiar US trend when people expand the scope of government, then get very surprised and indignant when it is brought to bear on them.

The Super Example is, of course, the South in the middle of the nineteenth century. They expanded the federal government dramatically with their Fugitive Slave Law and their Dred Scott ruling.

Then, when the other side got hold of that shiny new machine, the Southern Ascendancy, instead of living with the fruit of their labours and adjusting as best they could, decided to secede. The newly mighty Feds kicked their backside. And that should have been a lesson! But it was never learned.

Even when it was no longer possible for governmentto support some people enslaving others, they still had to push government into the very heart of a person’s private life. The bedroom. Laws against “sodomy” and “miscegenation” proliferated. In that way, the government was made a bizarre arbiter of what is legitimate and not legitimate between consenting adults in the privacy of a home. And thus, the foundation for the Obefgefell v Hodges decision, requiring all US states to license and recognize same-sex marriage irrespective of the will of their peoples, was laid.

Without “sodomy” and “miscegenation” laws, what licenses each state issues would be a simple matter – what kind of privileges are the state’s people willing to give to what kinds of couples? People’s fundamental rights would not be affected What one states denies, another state could grant.

But as things went, marriage licenses became licenses for the kind of private activity that should never be subject to licensing. This also led to perverse state laws criminalizing getting married in other states. And all these things started to come to fruition in Virginia vs. Loving.

Richard and Mildred Loving were a usual couple by any objective measure. Just a man and a woman. But failed nineteenth-century theories assigned them to different so-called “races” (though it was never really clear what “race” Mildred was assigned to, it was definitely not “white”, to which Richard was assigned). Based on that, the state of Virginia would not give them a marriage license, so they acquired one elsewhere. However, the peeping tom state would not eave it at that – the police raided their house and charged them with sleeping in the same bed!

If this were not to happen, if there was never a chance of this happening, states might still have the freedom to define marriage in whatever way they darn please. Some would probably have same-sex marriage, some would not, some could perhaps have polyamorous marriage. (Look at the European Union, where Ireland voted to have same-sex marriage and Croatia voted to not have it; in both cases the peoples made their decisions without a court hanging over them).

But the government of Virginia had the nerve to violate the sanctity of the family home for no good reason. Things eventually came to the Supreme Court. And that is how federal judicial regulation of who can get married was born. Marriage, originally a public institution that had to do with inheritance, was intertwined with the very private right to intimate choice.

And eventually, that intertwining found its logical expression in Obergefell vs Hodges. Sodomy laws were overturned in 2003, and with the legacy of the Loving case tying permission for sexual relations with permission for marriage, things slowly worked up to same-sex marriage. The SCOTUS decision does not recognize anything about “orientation”; it simply affirms the right of personal choice, which is natural, and the link of marriage to that choice, which is by now well established. Established originally by conservatives, not liberals.

What now? Now there is a clearly proclaimed right to choice in intimate identity and beliefs. I believe conservatives should use it to their advantage, notably when overreaching anti-discrimination laws require them, in a totally unreasonable way, to use artistic expression in support of ideas or relationships they do not personally approve of.

(The peak of foolishness, I think, is extending non-discrimination requirements to marriage photographers; a photographer’s results depend on personal feelings in a way that can not be quantified. At any event of mine, I would ideally want a photographer who is genuinely enthusiastic about it – or genuinely sad about it if it is a funeral. So for best results, photographers should be able to discriminate on any reasons at all, and simply by personal taste too.)

And perhaps they are learning that the state is best kept out of things where it is not essential (“save lives” kind of essential). *Perhaps*. Or perhaps not. They are so much into free speech, except when the free speech goes against what they believe – see how they dumped Milo for suggesting the age of consent is not set in stone and *some* teenagers *might* be able to consent earlier. (Given that the age of consent in the Western world varies from 14 to 18, his words were really pretty trivial – not necessarily correct, but trivial).


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