Tout ce qui n’est pas nouveau dans un temps d’innovation est pernicieux. Saint-Just
Voilà, Monseigneur, une fête toute napolitaine : nous dansons sur un volcan ! Narcisse-Achille de Salvandy (au roi des Deux-Siciles, 1830)
Il n’y a plus ni Juif ni Grec, il n’y a plus ni esclave ni libre, il n’y a plus ni homme ni femme; car tous vous êtes un en Jésus Christ. Paul (Galates 3: 28)
La loi naturelle n’est pas un système de valeurs possible parmi beaucoup d’autres. C’est la seule source de tous les jugements de valeur. Si on la rejette, on rejette toute valeur. Si on conserve une seule valeur, on la conserve tout entier. (. . .) La rébellion des nouvelles idéologies contre la loi naturelle est une rébellion des branches contre l’arbre : si les rebelles réussissaient, ils découvriraient qu’ils se sont détruits eux-mêmes. L’intelligence humaine n’a pas davantage le pouvoir d’inventer une nouvelle valeur qu’il n’en a d’imaginer une nouvelle couleur primaire ou de créer un nouveau soleil avec un nouveau firmament pour qu’il s’y déplace. (…) Tout nouveau pouvoir conquis par l’homme est aussi un pouvoir sur l’homme. Tout progrès le laisse à la fois plus faible et plus fort. Dans chaque victoire, il est à la fois le général qui triomphe et le prisonnier qui suit le char triomphal . (…) Le processus qui, si on ne l’arrête pas, abolira l’homme, va aussi vite dans les pays communistes que chez les démocrates et les fascistes. Les méthodes peuvent (au premier abord) différer dans leur brutalité. Mais il y a parmi nous plus d’un savant au regard inoffensif derrière son pince-nez, plus d’un dramaturge populaire, plus d’un philosophe amateur qui poursuivent en fin de compte les mêmes buts que les dirigeants de l’Allemagne nazie. Il s’agit toujours de discréditer totalement les valeurs traditionnelles et de donner à l’humanité une forme nouvelle conformément à la volonté (qui ne peut être qu’arbitraire) de quelques membres ″chanceux″ d’une génération ″chanceuse″ qui a appris comment s’y prendre. C.S. Lewis (L’abolition de l’homme, 1943)
Le monde moderne n’est pas mauvais : à certains égards, il est bien trop bon. Il est rempli de vertus féroces et gâchées. Lorsqu’un dispositif religieux est brisé (comme le fut le christianisme pendant la Réforme), ce ne sont pas seulement les vices qui sont libérés. Les vices sont en effet libérés, et ils errent de par le monde en faisant des ravages ; mais les vertus le sont aussi, et elles errent plus férocement encore en faisant des ravages plus terribles. Le monde moderne est saturé des vieilles vertus chrétiennes virant à la folie. G.K. Chesterton
Muhammad révéla à Médine des qualités insoupçonnées de dirigeant politique et de chef militaire. Il devait subvenir aux ressources de la nouvelle communauté (umma) que formaient les émigrés (muhadjirun) mekkois et les « auxiliaires » (ansar) médinois qui se joignaient à eux. Il recourut à la guerre privée, institution courante en Arabie où la notion d’État était inconnue. Muhammad envoya bientôt des petits groupes de ses partisans attaquer les caravanes mekkoises, punissant ainsi ses incrédules compatriotes et du même coup acquérant un riche butin. En mars 624, il remporta devant les puits de Badr une grande victoire sur une colonne mekkoise venue à la rescousse d’une caravane en danger. Cela parut à Muhammad une marque évidente de la faveur d’Allah. Elle l’encouragea sans doute à la rupture avec les juifs, qui se fit peu à peu. Le Prophète avait pensé trouver auprès d’eux un accueil sympathique, car sa doctrine monothéiste lui semblait très proche de la leur. La charte précisant les droits et devoirs de chacun à Médine, conclue au moment de son arrivée, accordait une place aux tribus juives dans la communauté médinoise. Les musulmans jeûnaient le jour de la fête juive de l’Expiation. Mais la plupart des juifs médinois ne se rallièrent pas. Ils critiquèrent au contraire les anachronismes du Coran, la façon dont il déformait les récits bibliques. Aussi Muhammad se détourna-t-il d’eux. Le jeûne fut fixé au mois de ramadan, le mois de la victoire de Badr, et l’on cessa de se tourner vers Jérusalem pour prier. Maxime Rodinson
Cela fait un an maintenant qu’est apparu au grand jour l’Etat islamique (EI). Et l’on ne peut que constater qu’il a lancé les « festivités » de cet anniversaire, malgré les bombardements qu’il subit. Tout cela accompagne le début du ramadan la semaine dernière. L’EI a appelé la quasi-totalité de ses sympathisants à fêter cette première année par tous les moyens et partout dans le monde. Selon moi, les attentats perpétrés à Saint-Quentin-Fallavier (Isère), à Sousse et à Koweït City s’inscrivent dans cette macabre célébration. C’est un terrible pied de nez adressé à la communauté internationale. Et ce n’est que le début.(…) Souvenons-nous : l’EI a commencé son offensive au début du ramadan 2014. Il a déclaré le califat le 30 juin 2014. Je pense donc que cela risque de culminer dans les semaines à venir. En outre, le mois de ramadan est considéré comme propice au jihad. Je crains donc que nous soyons face au lancement d’une campagne d’attentats. (…) on n’est pas assez conscients de la portée symbolique des dates et des lieux. Désormais, l’EI se considère comme un Etat, gère les territoires comme tel, avec un gouvernement, une administration et un agenda. Nous sommes bel et bien face à un Etat terroriste. Mathieu Guidère
Je m’ennuie follement dans la monogamie, même si mon désir et mon temps peuvent être reliés à quelqu’un et que je ne nie pas le caractère merveilleux du dévelopement d’une intimité. Je suis monogame de temps en temps mais je préfère la polygamie et la polyandrie. Carla Bruni
A 80 ans, le cuisinier livre l’un de ses secrets : depuis près de quatre décennies, il partage sa vie entre trois femmes, déjeunant chez l’une, prenant le thé chez l’autre, dînant avec la dernière. (…) Ses trois femmes, en restant à ses côtés en toute connaissance de cause, font la démonstration qu’elles l’acceptent comme il est, depuis presque quarante ans, à partager sa vie en trois, ses journées en trois. Déjeunant chez l’une, prenant le thé chez l’autre, dînant avec la dernière. Partant à la montagne avec l’une, au Japon avec la deuxième, restant au coin du feu avec la troisième. Elevant une fille avec la première. Un fils avec la deuxième. Confiant à la fille de la troisième la rédaction de ce livre testament. Libération
Avec la crise économique dans mon pays, peu d’hommes peuvent entretenir plusieurs épouses. En France, c’est différent, tous ces enfants sont une source de revenus. Oumar Dicko (ministre chargé des Maliens de l’extérieur)
Is it just wishful thinking to imagine the end of liberalism? Few things in politics are permanent. Conservatism and liberalism didn’t become the central division in our politics until the middle of the 20th century. Before that, American politics revolved around such issues as states’ rights, the wars, slavery, the tariff, and suffrage. Parties have come and gone in our history. You won’t find many Federalists, Whigs, or Populists lining up at the polls these days. Britain’s Liberal Party faded from power in the 1920s. The Canadian Liberal Party collapsed in 2011. Recently, within a decade of its maximum empire at home and abroad, a combined intellectual movement, political party, and form of government crumbled away, to be swept up and consigned to the dustbin of history. Communism, which in a very different way from American liberalism traced its roots to Hegel, Social Darwinism, and leadership by a vanguard group of intellectuals, vanished before our eyes, though not without an abortive coup or two. If Communism, armed with millions of troops and thousands of megatons of nuclear weapons, could collapse of its own dead weight and implausibility, why not American liberalism? The parallel is imperfect, of course, because liberalism and its vehicle, the Democratic Party, remain profoundly popular, resilient, and changeable. Elections matter to them. What’s more, the egalitarian impulse, centralized government (though not centralized administration), and the Democratic Party have deep roots in the American political tradition—and reflect permanent aspects of modern democracy itself, as Tocqueville testifies. Some elements of liberalism are inherent in American democracy, then, but the compound, the peculiar combination that is contemporary liberalism, is not. Compounded of the Hegelian philosophy of history, Social Darwinism, the living constitution, leadership, the cult of the State, the rule of administrative experts, entitlements and group rights, and moral creativity, modern liberalism is something new and distinctive, despite the presence in it, too, of certain American constants like the love of equality and democratic individualism. Under the pressure of ideas and events, that compound could come apart. Liberals’ confidence in being on the right, the winning side of history could crumble, perhaps has already begun to crumble. Trust in government, which really means in the State, is at all-time lows. A majority of Americans oppose a new entitlement program—in part because they want to keep the old programs unimpaired, but also because the economic and moral sustainability of the whole welfare state grows more and more doubtful. The goodwill and even the presumptive expertise of many government experts command less and less respect. Obama’s speeches no longer send the old thrill up the leg, and his leadership, whether for one or two terms, may yet help to discredit the respectability of following the Leader. The Democratic Party is unlikely to go poof, but it’s possible that modern liberalism will. A series of nasty political defeats and painful repudiations of its impossible dreams might do the trick. At the least, it will have to downsize its ambitions and get back in touch with political, moral, and fiscal reality. It will have to—all together now—turn back the clock. Much will depend, too, on what conservatives say and do in the coming years. Will they have the prudence and guile to elevate the fight to the level of constitutional principle, to expose the Tory credentials of their opponents? President Obama’s decision to double down aggressively on the reach and cost of big government just as the European model of social democracy is hitting the skids provides the perfect opportunity for conservatives to exploit. His course makes the problems of liberalism worse and more urgent, as though he is eager for a crisis. Sooner or later, the crisis will come. If the people remain attached to their government and laws and American statesmen do their part, the country may yet take the path leading up from liberalism. Charles R. Kesler (October 15, 2012)
La limitation du mariage aux couples de sexe opposé a pu longtemps sembler naturel et juste, mais son incompatibilité avec la signification centrale du droit fondamental de se marier est désormais manifeste. Cour suprême américaine
Aucune union n’est plus profonde que le mariage, car le mariage incarne les plus hauts idéaux de l’amour, la fidélité, la dévotion, le sacrifice et la famille. En formant une union maritale, deux personnes deviennent quelque chose de plus grand que ce qu’elles étaient auparavant. Le mariage incarne un amour qui peut perdurer malgré la mort. Ce serait ne pas comprendre ces hommes et ces femmes que de dire qu’ils manquent de respect à l’idée du mariage. Leur plaidoyer consiste à dire que justement ils le respectent, le respectent si profondément qu’ils cherchent eux-mêmes s’accomplir grâce à lui. Ils demandent une dignité égale aux yeux de la loi. La Constitution leur donne ce droit. Cour suprême américaine
Le destin des homosexuels n’est pas d’être condamnés à la solitude, exclus de l’une des plus anciennes institutions de la civilisation. Ils demandent à bénéficier de la même dignité aux yeux de la loi. La Constitution leur garantit ce droit. Juge Anthony Kennedy
C’est une victoire pour les alliés, les amis et les soutiens du mariage gay qui ont passé des années, voire des décennies, à travailler et prier pour que le changement intervienne. Et cette décision est une victoire pour l’Amérique. Barack Hussein Obama
Realists should celebrate gay marriage. Today’s Supreme Court ruling will help create a better, stronger America. Stephen M. Walt
Do you want to fight the Islamic State and the forces of Islamic extremist terrorism? I’ll tell you the best way to send a message to those masked gunmen in Iraq and Syria and to everyone else who gains power by sowing violence and fear. Just keep posting that second set of images. Post them on Facebook and Twitter and Reddit and in comments all over the Internet. Send them to your friends and your family. Send them to your pen pal in France and your old roommate in Tunisia. Send them to strangers. Yes, it’s sappy. But this has always been the dream of America:(…) And I still have faith that this dream is the one that will prevail, in the end. That’s the lesson of history: Brutality and fear can keep people down for only so long. The Nazis learned this; the Soviets learned it; the Ku Klux Klan learned it; Pol Pot learned it; the Rwandan génocidaires learned it. One of these days, the Islamic State and al Qaeda will learn it too. I’m not a big fan of Twitter, but for once there’s a Twitter hashtag worth quoting, though it took my 13-year-old daughter to point it out to me: #LoveWins. Tweet it. Shout it. Sing it. Rosa Brooks
Major U.S. defense contractors stand to earn a windfall if President Barack Obama’s administration secures a nuclear deal with Iran that sends jittery, oil-rich Persian Gulf countries seeking advanced new weapons. But the contractors likely will also do just fine if the negotiations unexpectedly collapse. Fueling the coming spending is a controversial provision in the framework agreement, struck in April between Tehran and world powers, that largely left Iran’s ballistic missile capabilities untouched in the ongoing negotiations. The move angered White House critics on Capitol Hill and in parts of Europe. More urgently, it left Gulf states like Saudi Arabia and the United Arab Emirates (UAE) particularly uneasy because they are well within range of Iran’s increasingly advanced ballistic missiles. That means deal or no deal, the Gulf countries — already some of the world’s biggest weapons buyers — will be opening their wallets even wider in the years ahead. American defense contractors have long recognized the lucrative opportunity in the region, and they are counting on increased weapons sales to the Middle East to counteract a U.S. market that has slowed due to the relative flattening of the domestic defense budget. Paul McLeary
The whites didn’t want to come out against Obama since he endorsed it so strongly and they didn’t want to be called bigots — and the blacks didn’t want to say they were betraying a black man. (…) I absolutely would not do a gay marriage. (…) I think of our children. What it’s going to do to our children. What kind of world are they going to grow up in? I’ve said for two years that we’re going to have to have civil disobedience. They were very cunning in the way they did it. (…) The homosexual community has not shown all of what it’s going to do. They have a game plan that, now that the Supreme Court has ruled, will take this country down a very immoral path. (…) I knew that he was going to do it the second term. His deal was, ‘Get me elected the first time, and I’ll come out for same-sex marriage in my second term.’ He deceived the American people, because the black community would not have backed him had he come out the first time for same-sex marriage. Some people just didn’t want to speak against Obama. (…) It’s going to be much harder, because we’re going to have to go from state to state. It’s going to be hard to do, but it can be done. Remember, blacks worked for 300 years for civil rights in the courts. Three-hundred long years. It’s not something that we’re going to win overnight. There is no quick fix, but I think now the church will rise up. All the Christian churches in the United States that believe that marriage is between a man and a woman, they need to rise up. (…) We’re asking people to rise up and be ready to go to jail. Why go to jail? To let it be known that we will not bow down, we will not give up, whatever the costs. It’s the new civil rights movement, because they are taking away our rights. They are taking away the Christian’s rights. This is just a start. We have nothing against homosexuals, but when you start talking about marriage, and then indoctrinating children, where are we going? Where is this society headed? Rev. Bill Owens (Coalition of African-American Pastors)
This morning’s ruling rejects not only thousands of years of time-honored marriage but also the rule of law in the United States. In states across the nation, voters acted through the democratic process to protect marriage and the family. Yet, courts around the country chose to disregard the will of the people in favor of political correctness and social experimentation. And we witnessed firsthand the consequences, as individuals were repeatedly targeted by the government for not actively supporting homosexual marriage. Sadly, our nation’s highest Court, which should be a symbol of justice, has chosen instead to be a tool of tyranny, elevating judicial will above the will of the people. There is no doubt that this morning’s ruling will imperil religious liberty in America, as individuals of faith who uphold time-honored marriage and choose not to advocate for same-sex unions will now be viewed as extremists. AFA President Tim Wildmon
Nationwide, according to the Family Research Council’s Peter Sprigg, just over 3.3 million individuals voted for same-sex marriage in three states—Maine, Maryland and Washington State—compared to more than 41 million who voted for marriage protection amendments or bans on same-sex marriage in 31 states—a ratio of more than 12 to 1. American Family Association
We should just start calling this law SCOTUScare. Anton Scalia
The decision will also have other important consequences. It will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. (…) Today’s decision shows that decades of attempts to restrain this Court’s abuse of its authority have failed. Samuel Alito
[T]his Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.” (…) Although the policy arguments for extending marriage to same-sex couples may be compelling, the legal arguments for requiring such an extension are not. The fundamental right to marry does not include a right to make a State change its definition of marriage. And a State’s decision to maintain the meaning of marriage that has persisted in every culture throughout human history can hardly be called irrational. In short, our Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening. Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens—through the democratic process—to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are? (…) Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer. (…) The premises supporting th[e] concept of [natural] marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond. (…) The Constitution itself says nothing about marriage, and the Framers thereby entrusted the States with “[t]he whole subject of the domestic relations of husband and wife. (…) This Court’s precedents have repeatedly described marriage in ways that are consistent only with its traditional meaning. (…) Stripped of its shiny rhetorical gloss, the majority’s argument is that the Due Process Clause gives same-sex couples a fundamental right to marry because it will be good for them and for society. If I were a legislator, I would certainly consider that view as a matter of social policy. But as a judge, I find the majority’s position indefensible as a matter of constitutional law. (…) The truth is that today’s decision rests on nothing more than the majority’s own conviction that same-sex couples should be allowed to marry because they want to, and that “it would disparage their choices and diminish their personhood to deny them this right.” Whatever force that belief may have as a matter of moral philosophy, it has no more basis in the Constitution than did the naked policy preferences adopted in Lochner. (…) Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not. Indeed, from the standpoint of history and tradition, a leap from opposite-sex marriage to same-sex marriage is much greater than one from a two-person union to plural unions, which have deep roots in some cultures around the world. If the majority is willing to take the big leap, it is hard to see how it can say no to the shorter one. It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage. (…) When asked about a plural marital union at oral argument, petitioners asserted that a State “doesn’t have such an institution.” But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either. (…) Nowhere is the majority’s extravagant conception of judicial supremacy more evident than in its description—and dismissal—of the public debate regarding same-sex marriage. Yes, the majority concedes, on one side are thousands of years of human history in every society known to have populated the planet. But on the other side, there has been “extensive litigation,” “many thoughtful District Court decisions,” “countless studies, papers, books, and other popular and scholarly writings,” and “more than 100” amicus briefs in these cases alone. What would be the point of allowing the democratic process to go on? It is high time for the Court to decide the meaning of marriage, based on five lawyers’ “better informed understanding” of “a liberty that remains urgent in our own era.” The answer is surely there in one of those amicus briefs or studies. Those who founded our country would not recognize the majority’s conception of the judicial role. They after all risked their lives and fortunes for the precious right to govern themselves. They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. And they certainly would not have been satisfied by a system empowering judges to override policy judgments so long as they do so after “a quite extensive discussion. (…) Those who founded our country would not recognize the majority’s conception of the judicial role … They would never have imagined yielding that right on a question of social policy to unaccountable and unelected judges. (…) If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it. Chief Justice Roberts
The most striking aspect of Justice Kennedy’s majority opinion in Obergefell v. Hodges, which created a constitutional right to same-sex marriage, was its deep emotion. This was no mere legal opinion. Indeed, the law and Constitution had little to do with it. (To Justice Kennedy, the most persuasive legal precedents were his own prior opinions protecting gay rights.) This was a statement of belief, written with the passion of a preacher, meant to inspire. Consider the already much-quoted closing: As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. Or this: “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” This isn’t constitutional law, it’s theology — a secular theology of self-actualization — crafted in such a way that its adherents will no doubt ask, “What decent person can disagree?” This is about love, and the law can’t fight love. Justice Kennedy’s opinion was nine parts romantic poetry and one part legal analysis (if that). And that’s what makes it so dangerous for religious liberty and free speech. Practitioners of constitutional law know that there is no such thing as an “absolute” right to free speech or religious freedom in any context — virtually all cases involve balancing the asserted right against the asserted state interest, with “compelling” state interests typically trumping even the strongest assertions of First Amendment rights. And what is more compelling than this ode to love? (…) This is the era of sexual liberty — the marriage of hedonism to meaning — and the establishment of a new civic religion. The black-robed priesthood has spoken. Will the church bow before their new masters? David French
Most dispiriting, and least convincing, are those arguments that simply reconstitute the slippery slope arguments that have been used for so long against same sex marriage. “If we allow group marriage,” the thinking seems to go, “why wouldn’t marriage with animals or children come next?” The difference is, of course, consent. In recent years, a progressive and enlightened movement has worked to insist that consent is the measure of all things in sexual and romantic practice: as long as all involved in any particular sexual or romantic relationship are consenting adults, everything is permissible; if any individual does not give free and informed consent, no sexual or romantic engagement can be condoned. This bedrock principle of mutually-informed consent explains exactly why we must permit polygamy and must oppose bestiality and child marriage. Animals are incapable of voicing consent; children are incapable of understanding what it means to consent. In contrast, consenting adults who all knowingly and willfully decide to enter into a joint marriage contract, free of coercion, should be permitted to do so, according to basic principles of personal liberty. The preeminence of the principle of consent is a just and pragmatic way to approach adult relationships in a world of multivariate and complex human desires. Progressives have always flattered themselves that time is on their side, that their preferences are in keeping with the arc of history. In the fight for marriage equality, this claim has been made again and again. Many have challenged our politicians and our people to ask themselves whether they can imagine a future in which opposition to marriage equality is seen as a principled stance. I think it’s time to turn the question back on them: given what you know about the advancement of human rights, are you sure your opposition to group marriage won’t sound as anachronistic as opposition to gay marriage sounds to you now? And since we have insisted that there is no legitimate way to oppose gay marriage and respect gay love, how can you oppose group marriage and respect group love? I suspect that many progressives would recognize, when pushed in this way, that the case against polygamy is incredibly flimsy, almost entirely lacking in rational basis and animated by purely irrational fears and prejudice. What we’re left with is an unsatisfying patchwork of unconvincing arguments and bad ideas, ones embraced for short-term convenience at long-term cost. We must insist that rights cannot be dismissed out of short-term interests of logistics and political pragmatism. The course then, is clear: to look beyond political convenience and conservative intransigence, and begin to make the case for extending legal marriage rights to more loving and committed adults. It’s time. Fredrik deBoer
Attention: un drapeau peut en cacher un autre !
Au lendemain du triple attentat sous drapeau djihadiste qui entre la France, le Koweit et la Tunisie et en l’honneur de la première victoire musulmane du Ramadan et du premier anniversaire de l’Etat islamique, fera une soixantaine de victimes …
Et à l’heure où après le véritable putsch juridique de la Cour suprême américaine, et de la Maison Blanche à l’Empire State Building, des chutes du Niagara aux frontons des mairies de San Francisco, Tel Aviv ou Paris ou des porte de Brandebourg, château de Disney World au pont de Minneapolis …
Entre les logos et les slogans les plus vides et les plus démagogiques (LoveWins/l’amour triomphe) de nos médias ou des entreprises de l’informatique et de l’Internet comme de nos prétendues lumières, d’Obama à Hillary Clinton et de Madonna, Lady Gaga, Taylor Swift ou Justin Timberlake, de la politique et du monde du spectacle …
Comment ne pas repenser au mot fameux du comte de Salvandry au roi des Deux-Siciles à la veille de la Révolution de Juillet …
Et ne pas voir avec le juge de la Cour suprême John Roberts et une tribune de l’hebdomadaire américain Foreign Policy …
La logique et prochaine étape de l’ubérisation sociétale que nous vivons …
A savoir la légalisation de la polygamie ?
It’s Time to Legalize Polygamy
Why group marriage is the next horizon of social liberalism.
June 26, 2015
Welcome to the exciting new world of the slippery slope. With the Supreme Court’s landmark ruling this Friday legalizing same sex marriage in all 50 states, social liberalism has achieved one of its central goals. A right seemingly unthinkable two decades ago has now been broadly applied to a whole new class of citizens. Following on the rejection of interracial marriage bans in the 20th Century, the Supreme Court decision clearly shows that marriage should be a broadly applicable right—one that forces the government to recognize, as Friday’s decision said, a private couple’s “love, fidelity, devotion, sacrifice and family.”
The question presents itself: Where does the next advance come? The answer is going to make nearly everyone uncomfortable: Now that we’ve defined that love and devotion and family isn’t driven by gender alone, why should it be limited to just two individuals? The most natural advance next for marriage lies in legalized polygamy—yet many of the same people who pressed for marriage equality for gay couples oppose it.
This is not an abstract issue. In Chief Justice John Roberts’ dissenting opinion, he remarks, “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” As is often the case with critics of polygamy, he neglects to mention why this is a fate to be feared. Polygamy today stands as a taboo just as strong as same-sex marriage was several decades ago—it’s effectively only discussed as outdated jokes about Utah and Mormons, who banned the practice over 120 years ago.
Yet the moral reasoning behind society’s rejection of polygamy remains just as uncomfortable and legally weak as same-sex marriage opposition was until recently.
That’s one reason why progressives who reject the case for legal polygamy often don’t really appear to have their hearts in it. They seem uncomfortable voicing their objections, clearly unused to being in the position of rejecting the appeals of those who would codify non-traditional relationships in law. They are, without exception, accepting of the right of consenting adults to engage in whatever sexual and romantic relationships they choose, but oppose the formal, legal recognition of those relationships. They’re trapped, I suspect, in prior opposition that they voiced from a standpoint of political pragmatism in order to advance the cause of gay marriage.
In doing so, they do real harm to real people. Marriage is not just a formal codification of informal relationships. It’s also a defensive system designed to protect the interests of people whose material, economic and emotional security depends on the marriage in question. If my liberal friends recognize the legitimacy of free people who choose to form romantic partnerships with multiple partners, how can they deny them the right to the legal protections marriage affords?
Polyamory is a fact. People are living in group relationships today. The question is not whether they will continue on in those relationships. The question is whether we will grant to them the same basic recognition we grant to other adults: that love makes marriage, and that the right to marry is exactly that, a right.
Why the opposition, from those who have no interest in preserving “traditional marriage” or forbidding polyamorous relationships? I think the answer has to do with political momentum, with a kind of ad hoc-rejection of polygamy as necessary political concession. And in time, I think it will change.
The marriage equality movement has been both the best and worst thing that could happen for legally sanctioned polygamy. The best, because that movement has required a sustained and effective assault on “traditional marriage” arguments that reflected no particular point of view other than that marriage should stay the same because it’s always been the same. In particular, the notion that procreation and child-rearing are the natural justification for marriage has been dealt a terminal injury. We don’t, after all, ban marriage for those who can’t conceive, or annul marriages that don’t result in children, or make couples pinkie swear that they’ll have kids not too long after they get married. We have insisted instead that the institution exists to enshrine in law a special kind of long-term commitment, and to extend certain essential logistical and legal benefits to those who make that commitment. And rightly so.
But the marriage equality movement has been curiously hostile to polygamy, and for a particularly unsatisfying reason: short-term political need. Many conservative opponents of marriage equality have made the slippery slope argument, insisting that same-sex marriages would lead inevitably to further redefinition of what marriage is and means. See, for example, Rick Santorum’s infamous “man on dog” comments, in which he equated the desire of two adult men or women to be married with bestiality. Polygamy has frequently been a part of these slippery slope arguments. Typical of such arguments, the reasons why marriage between more than two partners would be destructive were taken as a given. Many proponents of marriage equality, I’m sorry to say, went along with this evidence-free indictment of polygamous matrimony. They choose to side-step the issue by insisting that gay marriage wouldn’t lead to polygamy. That legally sanctioned polygamy was a fate worth fearing went without saying.
To be clear: our lack of legal recognition of group marriages is not the fault of the marriage equality movement. Rather, it’s that the tactics of that movement have made getting to serious discussions of legalized polygamy harder. I say that while recognizing the unprecedented and necessary success of those tactics. I understand the political pragmatism in wanting to hold the line—to not be perceived to be slipping down the slope. To advocate for polygamy during the marriage equality fight may have seemed to confirm the socially conservative narrative, that gay marriage augured a wholesale collapse in traditional values. But times have changed; while work remains to be done, the immediate danger to marriage equality has passed. In 2005, a denial of the right to group marriage stemming from political pragmatism made at least some sense. In 2015, after this ruling, it no longer does.
While important legal and practical questions remain unresolved, with the Supreme Court’s ruling and broad public support, marriage equality is here to stay. Soon, it will be time to turn the attention of social liberalism to the next horizon. Given that many of us have argued, to great effect, that deference to tradition is not a legitimate reason to restrict marriage rights to groups that want them, the next step seems clear. We should turn our efforts towards the legal recognition of marriages between more than two partners. It’s time to legalize polygamy.
Conventional arguments against polygamy fall apart with even a little examination. Appeals to traditional marriage, and the notion that child rearing is the only legitimate justification of legal marriage, have now, I hope, been exposed and discarded by all progressive people. What’s left is a series of jerry-rigged arguments that reflect no coherent moral vision of what marriage is for, and which frequently function as criticisms of traditional marriage as well.
Many argue that polygamous marriages are typically sites of abuse, inequality in power and coercion. Some refer to sociological research showing a host of ills that are associated with polygamous family structures. These claims are both true and beside the point. Yes, it’s true that many polygamous marriages come from patriarchal systems, typically employing a “hub and spokes” model where one husband has several wives who are not married to each other. These marriages are often of the husband-as-boss variety, and we have good reason to suspect that such models have higher rates of abuse, both physical and emotional, and coercion. But this is a classic case of blaming a social problem on its trappings rather than on its actual origins.
After all, traditional marriages often foster abuse. Traditional marriages are frequently patriarchal. Traditional marriages often feature ugly gender and power dynamics. Indeed, many would argue that marriage’s origins stem from a desire to formalize patriarchal structures within the family in the first place. We’ve pursued marriage equality at the same time as we’ve pursued more equitable, more feminist heterosexual marriages, out of a conviction that the franchise is worth improving, worth saving. If we’re going to ban marriages because some are sites of sexism and abuse, then we’d have to start with the old fashioned one-husband-and-one-wife model. If polygamy tends to be found within religious traditions that seem alien or regressive to the rest of us, that is a function of the very illegality that should be done away with. Legalize group marriage and you will find its connection with abuse disappears.
Another common argument, and another unsatisfying one, is logistical. In this telling, polygamous marriages would strain the infrastructure of our legal systems of marriage, as they are not designed to handle marriage between more than two people. In particular, the claim is frequently made that the division of property upon divorce or death would be too complicated for polygamous marriages. I find this argument eerily reminiscent of similar efforts to dismiss same-sex marriage on practical grounds. (The forms say husband and wife! What do you want us to do, print new forms?) Logistics, it should go without saying, are insufficient reason to deny human beings human rights.
If current legal structures and precedents aren’t conducive to group marriage, then they will be built in time. The comparison to traditional marriage is again instructive. We have, after all, many decades of case law and legal organization dedicated to marriage, and yet divorce and family courts feature some of the most bitterly contested cases imaginable. Complication and dispute are byproducts of human relationships and human commitment. We could, as a civil society, create a legal expectation that those engaging in a group marriage create binding documents and contracts that clearly delineate questions of inheritance, alimony, and the like. Prenups are already a thing.
Most dispiriting, and least convincing, are those arguments that simply reconstitute the slippery slope arguments that have been used for so long against same sex marriage. “If we allow group marriage,” the thinking seems to go, “why wouldn’t marriage with animals or children come next?” The difference is, of course, consent. In recent years, a progressive and enlightened movement has worked to insist that consent is the measure of all things in sexual and romantic practice: as long as all involved in any particular sexual or romantic relationship are consenting adults, everything is permissible; if any individual does not give free and informed consent, no sexual or romantic engagement can be condoned.
This bedrock principle of mutually-informed consent explains exactly why we must permit polygamy and must oppose bestiality and child marriage. Animals are incapable of voicing consent; children are incapable of understanding what it means to consent. In contrast, consenting adults who all knowingly and willfully decide to enter into a joint marriage contract, free of coercion, should be permitted to do so, according to basic principles of personal liberty. The preeminence of the principle of consent is a just and pragmatic way to approach adult relationships in a world of multivariate and complex human desires.
Progressives have always flattered themselves that time is on their side, that their preferences are in keeping with the arc of history. In the fight for marriage equality, this claim has been made again and again. Many have challenged our politicians and our people to ask themselves whether they can imagine a future in which opposition to marriage equality is seen as a principled stance. I think it’s time to turn the question back on them: given what you know about the advancement of human rights, are you sure your opposition to group marriage won’t sound as anachronistic as opposition to gay marriage sounds to you now? And since we have insisted that there is no legitimate way to oppose gay marriage and respect gay love, how can you oppose group marriage and respect group love?
I suspect that many progressives would recognize, when pushed in this way, that the case against polygamy is incredibly flimsy, almost entirely lacking in rational basis and animated by purely irrational fears and prejudice. What we’re left with is an unsatisfying patchwork of unconvincing arguments and bad ideas, ones embraced for short-term convenience at long-term cost. We must insist that rights cannot be dismissed out of short-term interests of logistics and political pragmatism. The course then, is clear: to look beyond political convenience and conservative intransigence, and begin to make the case for extending legal marriage rights to more loving and committed adults. It’s time.
Fredrik deBoer is a writer and academic. He lives in Indiana.
Why Realists Should Celebrate Gay Marriage
Today’s Supreme Court ruling will help create a better, stronger America.
Stephen M. Walt
June 26, 2015
Regular readers know I am often critical of the U.S. government because I believe pointing to flaws that could be corrected is part of my job. But it is also important to highlight those moments when my country does the right thing, and today’s SCOTUS decision on gay marriage is one of them.
For starters, the decision is consistent with the defining feature of American democracy: its emphasis on individual freedom and personal choice. As the court made clear, if consenting adults are not free to fall in love with whomever they are drawn to and to express that love openly in the institution of marriage, then they are being denied the full rights that other citizens enjoy and they are not in fact truly free. Today’s decision eliminated this obvious contradiction between our ideals and our practices, and it should be celebrated for that reason alone.
Second, along with U.S. President Barack Obama’s decision to permit gay Americans to serve openly in the armed forces, the decision is a blow in favor of fairness and efficiency. Prejudice and bigotry are bad in and of themselves, but they also impede the optimal use of human resources. When gay people could not serve openly in the military, our country was denied the talents that these patriotic individuals could have brought to important national security tasks. Similarly, when gay Americans could not marry or live together openly without fearing persecution, and when companies discriminated against gay employees, it meant that our society could not reap the full benefits of their unfettered participation. Whenever we remove another plank of prejudice, we help the best people rise as far as their abilities can take them, and all of us benefit as a result.
Today’s decision is also a tribute to the power of America’s oft maligned democratic institutions and the ability of reasoned discourse to triumph over ancient stigmas. Gay marriage did not come about by accident or just because two gay people decided to file a lawsuit a few years ago. It came about because courageous writers like Andrew Sullivan wrote powerfully in its favor, because an array of people — both gay and straight — organized to carry these arguments forward, and because more and more gay people came out and the straight world learned to relish their friendship and see them as equals. Once these things happened, the contradiction between our values and our laws — and the obvious injustice of the latter — was increasingly apparent. The American political system does not change direction quickly or easily, but it is open to reasoned discourse and responsive to changing sentiments. Even a Supreme Court dominated by conservatives could not fail to see that the ground had shifted, and today’s decision reflects that welcome reality.
Finally, establishing gay marriage as a fundamental right removes one of the practices that has separated the United States from many of its democratic partners (the Netherlands, Belgium, Canada, Spain, South Africa, Norway, Sweden, Argentina, Iceland, Portugal, Denmark, Brazil, England, Wales, France, New Zealand, Uruguay, Luxembourg, Scotland, and Finland). It will increase pressure on some other countries to follow suit, especially within Western Europe. At the same time, it is likely to broaden the gulf between states where homosexuality is becoming a nonissue and those where it is still persecuted and even same-sex unions are illegal. For gay people around the world, the struggle is far from over.
The struggle for human rights of different kinds is long and slow. But today, the arc of history bent.
Can Gay Marriage Defeat the Islamic State?
A few — admittedly sappy — thoughts on the power of #LoveWins.
June 26, 2015
I was thinking about two sets of images this morning: one from an Islamic State-controlled city in Iraq, the other from the steps of the U.S. Supreme Court in Washington, D.C.
The first set of images, from early June, shows masked gunmen surrounding a crowd of people, mostly men. Some of the faces in the crowd show fear or hatred; others are studiously blank. But all eyes are fixed on the rooftop of a nearby building, where a blindfolded man is dangling upside down, his ankle held tightly by another masked man. Next image: The blindfolded man’s body plummets headfirst toward the pavement below. Final image: a crumpled, bloody heap on the ground, surrounded by a sea of faces. Headline and caption, from Fox News: “ISIS conducts more executions of men for being gay.… On June 3, 2015, Islamic State (ISIS) operatives in Iraq’s Ninveh province published photos of a public execution in Mosul of three men convicted of acts of homosexuality. The three men were blindfolded and dropped head first from the roof of a tall building in front of a large crowd of spectators, including children.”
The second set of images shows another crowd, thousands of miles away from the first. This crowd is full of men and women, all ages and all races, and they’re waving American flags and rainbow-colored flags. This crowd isn’t flanked by gunmen; no one looks frightened or enraged. This crowd is laughing and embracing; a few people are weeping, their faces lit with relief and joy. Caption from the Washington Post: “Gay rights supporters celebrate outside the Supreme Court in Washington after justices ruled that same-sex couples have the right to marry, no matter where they live.”
I know which crowd I’d rather be in.
Do you want to fight the Islamic State and the forces of Islamic extremist terrorism? I’ll tell you the best way to send a message to those masked gunmen in Iraq and Syria and to everyone else who gains power by sowing violence and fear. Just keep posting that second set of images. Post them on Facebook and Twitter and Reddit and in comments all over the Internet. Send them to your friends and your family. Send them to your pen pal in France and your old roommate in Tunisia. Send them to strangers.
Yes, it’s sappy. But this has always been the dream of America: a dream of freedom, of a land where no one would force their religious beliefs on anyone else. A land where all people would have the unalienable rights to life, liberty, and the pursuit of happiness. A land where we could seek change peacefully and trust our laws and institutions to respond to our deepest hopes.
The fulfillment of that dream has always been just a little bit beyond our reach, and we can approach it only through ceaseless struggle against the forces of darkness and reaction. This country has seen its share of hate-filled crowds. It has seen its share of whippings, lynchings, and beatings.
But it’s a dream that has brought untold millions of immigrants to our shores over the years, fleeing religious persecution and war and repression and a thousand different brands of hatred. It’s a dream that helped make the United States emulated and admired around the world. And it’s a dream that isn’t dead, as the Supreme Court’s decision on same-sex marriage reminds us.
Yes, America still has gunmen who shoot up churches and schools and bombers intent on turning crowds of smiling athletes and spectators into bloody bodies. We still have plenty of bigots and bullies. But we also still have that dream.
And I still have faith that this dream is the one that will prevail, in the end. That’s the lesson of history: Brutality and fear can keep people down for only so long. The Nazis learned this; the Soviets learned it; the Ku Klux Klan learned it; Pol Pot learned it; the Rwandan génocidaires learned it.
One of these days, the Islamic State and al Qaeda will learn it too.
I’m not a big fan of Twitter, but for once there’s a Twitter hashtag worth quoting, though it took my 13-year-old daughter to point it out to me: #LoveWins.
Tweet it. Shout it.
The Supreme Court Ratifies a New Civic Religion That Is Incompatible with Christianity
June 26, 2015
The most striking aspect of Justice Kennedy’s majority opinion in Obergefell v. Hodges, which created a constitutional right to same-sex marriage, was its deep emotion. This was no mere legal opinion. Indeed, the law and Constitution had little to do with it. (To Justice Kennedy, the most persuasive legal precedents were his own prior opinions protecting gay rights.) This was a statement of belief, written with the passion of a preacher, meant to inspire. Consider the already much-quoted closing: As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right. Or this: “Marriage responds to the universal fear that a lonely person might call out only to find no one there.” This isn’t constitutional law, it’s theology — a secular theology of self-actualization — crafted in such a way that its adherents will no doubt ask, “What decent person can disagree?” This is about love, and the law can’t fight love. Justice Kennedy’s opinion was nine parts romantic poetry and one part legal analysis (if that). And that’s what makes it so dangerous for religious liberty and free speech. Practitioners of constitutional law know that there is no such thing as an “absolute” right to free speech or religious freedom in any context — virtually all cases involve balancing the asserted right against the asserted state interest, with “compelling” state interests typically trumping even the strongest assertions of First Amendment rights. And what is more compelling than this ode to love? RELATED: Supreme Court Forces States to Perform Gay Marriage, 5-4
The challenge for orthodox religious believers is now abundantly clear: For years, they’ve been standing against “history,” “equality,” and — yes — love itself. Now, all of that rhetoric has been constitutionalized, embedded in the secular scripture of our land. To be sure, Justice Kennedy did at least nod in the direction of the orthodox, declaring: Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. But this rhetoric, as he knows, is legally meaningless in the face of the potent combination of emotion and legal doctrines that have long deemphasized religious freedom. Justice Kennedy’s rhetoric will slide neatly into existing balancing tests, leaving defenders of religious liberty grasping for persuasive rhetoric to counter the irresistible tide of the new, civic religion. More marriage The Supreme Court Has Legalized Same-Sex Marriage: Now What? Sweeping Aside Madison’s Handiwork Constitutional Remedies to a Lawless Supreme Court For many believers, this new era will present a unique challenge. Christians often strive to be seen as the “nicest” or “most loving” people in their communities. Especially among Evangelicals, there is a naïve belief that if only we were winsome enough, kind enough, and compassionate enough, the culture would welcome us with open arms. But now our love — expressed in the fullness of a Gospel that identifies homosexual conduct as sin but then provides eternal hope through justification and sanctification — is hate. Christians who’ve not suffered for their faith often romanticize persecution. They imagine themselves willing to lose their jobs, their liberty, or even their lives for standing up for the Gospel. Yet when the moment comes, at least here in the United States, they often find that they simply can’t abide being called “hateful.” It creates a desperate, panicked response. “No, you don’t understand. I’m not like those people — the religious right.” Thus, at the end of the day, a church that descends from apostles who withstood beatings finds itself unable to withstand tweetings. Social scorn is worse than the lash. This is the era of sexual liberty — the marriage of hedonism to meaning — and the establishment of a new civic religion. The black-robed priesthood has spoken. Will the church bow before their new masters?
— David French is an attorney and a staff writer at National Review.
Iran’s Missiles Are a Windfall for U.S. Defense Contractors
Nuclear deal or not, Tehran is keeping its ballistic missiles. And American firms are betting on a buyer’s market in the Persian Gulf.
June 26, 2015
Major U.S. defense contractors stand to earn a windfall if President Barack Obama’s administration secures a nuclear deal with Iran that sends jittery, oil-rich Persian Gulf countries seeking advanced new weapons. But the contractors likely will also do just fine if the negotiations unexpectedly collapse.
Fueling the coming spending is a controversial provision in the framework agreement, struck in April between Tehran and world powers, that largely left Iran’s ballistic missile capabilities untouched in the ongoing negotiations. The move angered White House critics on Capitol Hill and in parts of Europe. More urgently, it left Gulf states like Saudi Arabia and the United Arab Emirates (UAE) particularly uneasy because they are well within range of Iran’s increasingly advanced ballistic missiles.
That means deal or no deal, the Gulf countries — already some of the world’s biggest weapons buyers — will be opening their wallets even wider in the years ahead.
American defense contractors have long recognized the lucrative opportunity in the region, and they are counting on increased weapons sales to the Middle East to counteract a U.S. market that has slowed due to the relative flattening of the domestic defense budget.
At defense giant Lockheed Martin, Chief Executive Officer Marillyn Hewson wants the company to boost its foreign sales to about 20 percent of the firm’s revenues by the end of 2015, up from 17 percent currently. Most of that growth is expected to come from its sales of missile defense systems. The company already sells about $8 billion in missiles and fire controls annually, with close to half going to America’s allies in the Middle East, Asia, and Europe.
“With the regional instability that’s going on [in the Mideast], we’ve seen a fairly large appetite for a layered air-defense capability,” said Joe Garland, vice president of international business development at Lockheed Martin Missiles and Fire Control.
“With the regional instability that’s going on [in the Mideast], we’ve seen a fairly large appetite for a layered air-defense capability,” said Joe Garland, vice president of international business development at Lockheed Martin Missiles and Fire Control.
In an attempt to deepen ties in the region, Lockheed in December set up what it has dubbed the Center for Innovation and Security Solutions in Abu Dhabi, UAE. Garland described it as an effort to collaborate with the UAE on “what type of systems they want to develop for their security,” while exploring new ideas for working with allies in the region.
It is not the number of deals that drives up profits, but the huge cost of fielding just a few systems. Over the past several years, the UAE has signed $1.9 billion in deals to buy two of Lockheed’s Terminal High Altitude Area Defense (THAAD) anti-ballistic missile systems. Qatar and Saudi Arabia, meanwhile, also are reportedly working to acquire the mobile, truck-mounted firing system, as well as an associated radar made by Raytheon.
Last year, an estimated 10 percent of Raytheon’s $23 billion in global sales went to the Middle East. The company has sold billions of dollars’ worth of Patriot missile systems to Israel, Saudi Arabia, Kuwait, Qatar, and the UAE, along with multiple big-dollar follow-on contracts for maintenance work and a constant stream of upgrades. The company booked a $2 billion sale of Patriots to Saudi Arabia this year.
The Saudi military joined a select club of countries that have deployed the Patriot missile in combat, knocking down a Scud missile fired over the border by Houthi rebels in Yemen this spring.
Raytheon officials declined to comment for this story. But in April, CEO Thomas Kennedy said international business amounted to 28 percent of the company’s revenues for the first quarter of 2015.
Those numbers should go up in coming years, regardless of the outcome of the Iran negotiations.
“The Saudis and Emiratis don’t trust the deal, no matter what the deal is,” Grant Rogan, CEO of Blenheim Capital and a military sales expert, told Foreign Policy.
“The Saudis and Emiratis don’t trust the deal, no matter what the deal is,” Grant Rogan, CEO of Blenheim Capital and a military sales expert, told Foreign Policy. He predicted more sales of Patriot missiles and advanced radar systems “happening in Saudi substantially faster if there’s no deal — or if it’s a deal that doesn’t defang Iran.”
The expected surge won’t make a huge difference on the ground right away, since missile defense systems take years to contract and produce. But as they wait for the expected deals to go through, the six countries that make up the Gulf Cooperation Council (GCC) have started to talk about pooling their missile defense and surveillance assets into a shared network to gain a clearer picture of what is flying through the region’s airspace.
But it is very much a work in progress.
“The problem there has been a political one,” said Thomas Karako, senior fellow at the Center for Strategic and International Studies. Following a May summit of GCC leaders in Washington, the Gulf nations issued a hopeful joint statement for progress on the network they described as a regionwide early-warning system — ostensibly as a safeguard against Iran.
Yet real questions remain over the Gulf states’ ability to overcome deeply entrenched political issues that have previously kept them from sharing intelligence. There’s also the issue of long-term technological investment. Building a networked radar and missile system is not merely about putting interceptors in the desert and pointing them toward the sky. “It’s about stitching those assets together and stitching the networks together,” Karako said.
Currently, there is no regionwide shared system to ensure that incoming attacks or other errant airspace objects aren’t missed. And that raises the overall threat for the Gulf nations.
Lockheed has “talked to a number of these GCC countries about how we can help them tie together” missile defense assets, Garland said. “It’s not there yet.”
While talk of selling more missile defense systems to the Middle East may seem a relatively easy way to blunt the Iranian missile threat, Washington should be cautious about how it balances its priorities.
Kingston Reif, director for disarmament and threat reduction policy for the Arms Control Association, said focusing too much on Tehran’s missiles ignores the true range of threats posed by Iran.
“To the extent that the U.S. [is] considering increasing arms sales, it should be focused on things like cyber and greater coordination on countering cyberthreats, which we know Iran is capable of,” Reif said.
But anti-ballistic missile systems are, to some degree, easier to sell to Gulf allies than other military weapons. The Defense Department has so far ruled out selling F-35 fighter jets, for example, since that would rile Israel and upset the qualitative military edge that Washington, by law, affords its staunchest ally in the region.
The growing distrust among some Gulf allies of Washington’s tentative agreement with Iran also risks changing the nature of some U.S. relationships in the region. Saudi Arabia’s bombing campaign against Houthi rebels in Yemen and airstrikes by both Riyadh and the UAE against jihadis in Libya are two examples of attacks launched without either Washington’s support or prior knowledge.
But the relationship will likely fray only so much, no matter the outcome of the eleventh-hour talks in Vienna between world powers and Iran. Saudi Arabia and other Gulf allies have suggested turning to France and even Russia for future arms, but the American defense industry, as well as Washington’s economic clout, still matters.
Following the May summit, GCC Assistant Secretary-General Abdel Aziz Abu Hamad Aluwaisheg told reporters the meeting “exceeded the expectations of most of us” in that it reasserted Washington’s commitment to Gulf security and containing Iran.
Obama assured Gulf states that a nuclear deal with Iran doesn’t reflect a “pivot” toward Tehran, Aluwaisheg said.
Obama “succeeded very well in putting those questions to rest,” he said.
At the same time, the Gulf is not about to let its guard down. Because Iran already fields a ballistic missile capability that has largely been left outside the nuclear negotiation process, any deal — or lack of a deal — still leaves a serious threat in place.
“Missile defense will continue to grow in the region, regardless,” Rogan said.
Voir de plus:
Over the rainbow
Mariage gay : déferlante de drapeaux arc-en-ciel dans le monde
Delphine Cuny | Rédactrice en chef adjointe
Politiques et entreprises se sont emparé des symboles du mouvement LGBT au lendemain de la légalisation du mariage gay aux USA et à la veille de plusieurs Gay Prides. Entre joie sincère et récupération.
Au lendemain de la légalisation du mariage homosexuel aux Etats-Unis, le drapeau arc-en-ciel, emblème du mouvement LGBT, a inondé les « timelines » sur Twitter et s’est invité sur de nombreux monuments de grandes capitales, où avait aussi lieu la Marche des fiertés (Gay Pride), à Paris notamment.
Le fronton de l’Hôtel de Ville avait hissé haut les fameuses couleurs, comme l’a tweeté la maire de Paris, Anne Hidalgo, reprenant le hashtag #LoveWins (l’amour triomphe) qui a fait florès sur la Toile. L’ambassadrice des Etats-Unis en France, Jane Hartley, était d’ailleurs ce samedi au côté d’Anne Hidalgo dans la Marche des fiertés à Paris.
La Maison Blanche, bien sûr, avait prévu un éclairage de nuit spécial, tout comme l’Empire State Building à New York, l’hôtel de ville de San Francisco, le pont de Minneapolis, mais aussi la porte de Brandebourg à Berlin ou la mairie de Tel Aviv, comme le rapporte le site d’architecture Arch Daily.
On a vu aussi quelques monuments ou lieux plus inattendus, comme par exemple, le château de Cendrillon à Disney World (Floride) ou même les chutes du Niagara. Mais pas la Tour Eiffel.
Les politiques, à l’image de Hillary Clinton, qui a repeint sa photo de profil sur Twitter aux couleurs arc-en-ciel, ont été les plus prompts à surfer sur la vague #LoveWins mais pas les seuls. Quelques célébrités comme Madonna, Lady Gaga, Taylor Swift ou Justin Timberlake, se sont aussi associées à cette journée historique.
Taylor Swift s’autocite dans sa chanson ‘Welcome to New York’ : ‘Et tu veux qui tu veux, garçons et garçons et filles et filles’
De nombreux médias ont aussi modifié leur logo pour l’occasion, comme les sites spécialisés en high tech comme The Verge, Mashable ou The Next Web, le site de la Bible de Hollywood, Variety. Mais pas les grands journaux comme le New York Times ou le Washington Post, restés plus sobres, même s’ils ont largement couvert l’événement et joué un rôle dans l’évolution des mentalités.
Ce sont surtout les marques qui se sont emparées du hashtag et du drapeau, en particulier les entreprises de la Silicon Valley, où le mouvement est en pointe : Twitter elle-même, Yahoo ou YouTube (Google) et bien sûr Apple, par la voix de Tim Cook, son directeur général, qui avait fait son coming-out et milité contre la discrimination.
‘Les Etats-Unis ont fait un pas dans la bonne direction aujourd’hui. #Fierd’Aimer’
On pourra citer aussi Uber, dont on parle tant en ce moment, qui publie un Gif montrant vraisemblablement des salariés ‘réjouis’ et ‘fiers’.
De grandes entreprises américaines comme Visa, la compagnie aérienne Delta, la chaîne de supermarchés Target, les bonbons Skittles ont également surfé sur la décision, relève USA Today. Les céréales Kellogg’s n’ont pas hésité se faire un coup de pub, en mettant en avant ses bonnes notes en matière de diversité, quitte à être accusé de faire de la récup. D’autres marques comme la chaîne de restos mexicains Chipotle, qui emballe un burrito d’alu arc-en-ciel, se sont risquées aux jeux de mots de plus ou moins bon goût.
Como Estas (comment ça va) devient Homo Estas chez Chipotle
Au total, Twitter a recensé plus de 10 millions de tweets en six heures sur la légalisation du mariage des couples de même sexe, dont plus de 2,6 millions avec la mention #LoveWins. Un record de 35 000 messages par minute a été atteint dans la nuit (peu avant minuit heure de New York).
A titre de comparaison, en novembre 2014, lors des émeutes à Ferguson, la décision de relaxer le policier ayant tué le jeune noir Michael Brown avait déclenché une tempête de 3,5 millions de tweets en 24 heures. En janvier dernier, il y avait eu 2,1 millions de tweets #JeSuisCharlie dans les six heures suivant l’attaque de l’hebdomadaire satirique.
Barack Obama and the Crisis of Liberalism
Charles R. Kesler, Ph.D.
The Heritage Foundation
October 15, 2012
Abstract: Liberalism as we know it today in America is on the verge of exhaustion. Facing a fiscal crisis that it has precipitated and no longer sure of its purpose, liberalism will either go out of business or be forced to reinvent itself as something quite different from what it has been. In this careful analysis of Barack Obama’s political thought, Charles R. Kesler shows that the President, though intent on reinvigorating the liberal faith, nonetheless fails to understand its fatal contradictions—a shortsightedness that may prove to be liberalism’s undoing. This essay is adapted from Kesler’s new book, I Am the Change: Barack Obama and the Crisis of Liberalism.
Barack Obama had the distinction of being the most liberal member of the United States Senate when he ran for President in 2008. The title had been conferred by National Journal, an inside-the-Beltway watchdog that annually assigns Senators (and Congressmen) an ideological rank based on their votes on economic, social, and foreign policy issues.
Since then, we have learned a lot more about his political leanings as a young man, which were fashionably leftist, broadly in keeping with the climate of opinion on the campuses where he found himself—Occidental College, Columbia University, Harvard Law School.
As a senior at Columbia, he attended the 1983 Socialist Scholars Conference, sponsored by the Democratic Socialists of America. Though a meeting of democratic socialists and, yes, community organizers, the conference as well as his long-running friendships with radicals of various sorts would have drawn more sustained attention if the Cold War were still raging. But it was not, and Obama pleaded youthful indiscretion and drift; and of course his campaign did its best to keep the details from coming out.
He still had to answer, in some measure, for his ties to William Ayers and Jeremiah Wright, but the issue with, say, the good reverend concerned his sermons about race and Middle East politics, not his penchant for visiting and honoring Fidel Castro, not to mention the Marxist Sandinistas in Nicaragua. Partly by avoiding the worst of the old anti-Communist gauntlet, Obama became the most left-wing liberal to be elected to national executive office since Henry Wallace.
Still, the President is not a self-proclaimed socialist—nor, like Wallace, a self-deceived fellow traveler or worse. Obama never went so far, so openly—whether out of inertia, political calculation, or good sense—and therefore never had to make a public apostasy. As a result, we know less about his evolving views than we might like, though probably more than he would like.
He calls himself a progressive or liberal, and we should take him at his word, at least until we encounter a fatal contradiction. That’s only reasonable and fair; and it avoids the desperate shortcut, gratifying as it may be, of unmasking him as—take your pick—a Third-World daddy’s boy, Alinskyist agitator, deep-cover Muslim, or undocumented alien. Conservatives, of all people, should know to beware instant gratification, especially when it comes wrapped in a conspiracy theory. In any case, hypocrisy, as Rochefoucauld wrote, is the tribute that vice pays to virtue, and Obama seems to think it would be a virtuous thing to have been a lifelong liberal, even if he wasn’t.
And so the question arises: What does it mean anymore to be a liberal? To answer it, we must first retrace the history of liberalism over the course of the past century.
The Four Waves of Liberalism
The 20th century was, as the late Tom Silver used to say, “the liberal century.” Conservatism was a late arrival, debuting as a self-conscious intellectual movement only in the 1950s and lacking significant political success until the 1980s. By contrast, the liberal storm was already gathering in the 1880s and broke upon the land in the new century’s second decade. It had made deep, decisive changes in American politics long before conservatism as we know it came on the scene.
It didn’t, however, win these victories all at once. Modern liberalism spread across the country in three powerful waves, interrupted by wars and by rather haphazard reactions to its excesses. Each wave of liberalism featured a different aspect of it—call them, for short, political liberalism, economic liberalism, and cultural liberalism—and each deposited on our shores a distinctive type of politics—the politics of progress, the politics of entitlements, and the politics of meaning.
These terms are conceptual rather than, strictly speaking, historical. They help to organize our thinking more so than our record-keeping, inasmuch as elements of all three were mixed up in each stage. Although it wasn’t inevitable that one wave should follow the next, a certain logic connected the New Freedom, the New Deal, and the Great Society. Each attempted to transform America, as their names suggest, and the second and third waves worked out themes implicit in the first. But the special flavor of each period owed much to the issues and forces involved, the legacy of previous reform, the character of the political leaders, and the disagreements within and between the generations of reformers. The third wave, centered on the Sixties, showed just how fratricidal liberalism could become.
The first and most disorienting wave was political liberalism, which began as a critique of the Constitution and the morality underlying it. That morality, Woodrow Wilson charged, the natural rights doctrine of Thomas Jefferson and Abraham Lincoln, was based on an outmoded account of human nature, an atomistic and egoistic view that needed to be corrected by a more well-rounded or social view, made plausible by the recent discovery that human nature was necessarily progressive or perfectible. So-called natural rights were actually historical or prescriptive, evolving with the times toward a final and rational truth. The 18th century Constitution, based on the 18th century notion of a fixed human nature with static rights, had in turn to be transcended by a modern or living constitution based on the evolutionary view. Drawing on a curious and unstable mixture of Social Darwinism, German idealism, and English historicism, Wilson outlined the new State that liberals would ever after be building, the goal of which would be nothing less than man’s complete spiritual fulfillment.
The second wave explicitly adopted the name of liberalism, laying aside the old banner of Progressivism. It championed liberality or generosity in the form of a new doctrine of socioeconomic rights and tried to connect the new rights to the old, the Second Bill of Rights (as FDR called it) to the First. Instead of rights springing from the individual, the New Deal reconceived individualism as springing from a new kind of rights created by the State. The new entitlement-style rights posed as personal rights, even though they effectually attached to groups; but due to the slight family resemblance, they allowed Roosevelt to present himself and the New Deal as the loyal servants and successors of the American Revolution, of the old social compact suitably updated.
Liberalism’s third wave, cultural or lifestyle liberalism, hit in the 1960s. It was only when this wave crashed around them that the radical character of liberalism became clear to the American people; only then that conservatism became, at least temporarily, a majority movement, insofar as it stood for America against its cultured despisers and reformers. The Great Society agreed with the New Deal that government had to provide for Americans’ necessities in order that they may live in freedom, but it denied that freedom from want and freedom from fear (along with freedom of speech and worship) were any longer sufficient for all-around human liberation. Freedom required not merely living comfortably but also creatively, a demand that the New Left took several steps further than poor Lyndon Johnson was willing or able to go.
In the Sixties, the “peculiar” character of the radicalism bound up with contemporary liberalism began to tear it apart as its constituent elements began to clash. When social morality collided with personal liberation, and the State’s authority clashed with the people’s rights, and the assumptions of rational progress were denied by protestors who preferred to make history by following their authentic selves rather than admire history as it came to an end—then liberalism began to unravel. For conflicting reasons, liberals lost faith that they were on the right side of history and that the State could ever provide the conditions for complete self-development or spiritual fulfillment.
Obama inherited that frayed liberalism. Against long odds, he’s tried to reunite its dissonant parts and restore its political élan. He brought America to the verge of a fourth wave of political and social transformation, something that neither Democrats nor Republicans thought possible. But as the latest embodiment of the visionary prophet-statesmen he hasn’t been able to sustain the deep connection to the American people that his election in 2008 seemed to promise and that his desire to restore liberalism as the country’s dominant public philosophy required. Perhaps after the debacle of the Great Society, three decades in the political shadow of Ronald Reagan, and the current protracted economic doldrums, Americans have grown suspicious of the liberal vision of the future as a kind of Brigadoon—a land of wonders that voters glimpse every four years but that quickly fades into the mists, and from which no one has ever returned.
Unlike any of his liberal predecessors, Obama’s tortuous doubts about American exceptionalism lead to a sense of his estrangement from his own country, a disability not relieved by his profession, in Berlin, that he is a citizen of the world as well. He seems to lack both the citizen’s pride and the immigrant’s gratitude.
Tempting as it might be to write off the President, it would be a big mistake. Whatever else he may accomplish, his staggering victory on health care reform has earned him a future place on the Mount Rushmore of liberalism, alongside those other supreme hero-statesmen of the creed, Woodrow Wilson, Franklin D. Roosevelt, and Lyndon B. Johnson. Assuming that his signature achievement is not unceremoniously repealed and replaced, Obama will almost certainly become one of the Democratic immortals, the giants who built and expanded the modern liberal state.
The New Progressivism of Barack Obama
Obama is neither an old-fashioned Progressive nor a radical postmodernist. Part of what makes him interesting is how he handles the conflicting strains of his own thought. As a decent man, he believes in justice and identifies with the civil rights movement’s insistence that Jim Crow was manifestly wrong and the cause of black equality manifestly right. As a self-described progressive, he believes in change; that is, he believes that change is almost always synonymous with improvement, that history has a direction and destination, that it’s crucial to be on the right side of history, not the wrong, and that it’s the leader’s job to discern which is the right side and to lead his people to that promised land of social equality and social justice.
Yet he’s skeptical of the simple-minded progressive equation of history with the inevitable triumph of justice; he fears that the foreknowledge of success or the optimistic certitude of victory would detract from the honor of standing up against Jim Crow, for example. It would also create a free-rider problem: Why risk opposing segregation if its fall is inevitable? He shares the civil rights movement’s sense that you have to make history, not just wait for it to make you. Yet if men can make history and history makes morality, then don’t human beings create their own morality?
As the product of a very liberal education, alas, Obama never discovered that this quandary could be resolved by returning from history to nature as the unchanging ground of our changing experience, as the foundation of morality and politics. Returning, say, to Lincoln’s and the Founders’ own understanding of themselves, reconsidering their argument for the Declaration’s principles, never occurred to him as a serious possibility. The progressivist assumptions, though decadent, were still too strong. He thought the only way was forward.
In his capacity as a political leader, Obama’s favorite formulation is that he seeks to “shape” history. But shaping history leaves ambiguous just how much freedom or influence human beings actually have—whether we shape history decisively or only marginally. As he declared in Iowa in 2010 after his health care victory: “Our future is what we make it. Our future is what we make it.”
That’s the deeper meaning of his slogan, “Yes, we can,” which he elsewhere called “a simple creed that sums up the spirit of a people.” In itself, the phrase sounds like a reply to “No, you can’t.” But was the nay-sayer denying us permission to do something or doubting our ability to do it? If the former, “Yes, we can” is an assertion of moral right or autonomy; if the latter, it’s an assertion of power or competence. For Obama, in Progressive fashion, the two appear to go together. Obama says, “Yes, we can” to slaves, abolitionists, immigrants, western pioneers, suffragettes, the space program, healing this nation, and repairing the world—and that’s in one speech.
In a strange way, “Yes, we can” takes the place in his thought that “all men are created equal” held in Lincoln’s thought. Insofar as it is America’s national creed, it affirms that America is what we make it at any given time: America stands for the ability to change, openness to change, the willingness to constantly remake ourselves—but apparently for no particular purpose. Jon Stewart, the comedian, caught the dilemma perfectly when, joshing the President over his equivocations on the Ground Zero mosque, he said Obama’s slogan, as amended, now read: “Yes, we can…. But…should we?”
The country’s saving principle, then, is openness to change. “The genius of our founders is that they designed a system of government that can be changed,” Obama said in 2007 when announcing his presidential candidacy. In short, ours is the kind of country that always says, “Yes, we can” to the principle of “Yes, we can.” We affirm our right to change by always changing; we shape history by reshaping ourselves.
For all his openness to change, there is one to which Obama consistently answers, “No, we can’t.” Any change that would move the country backward, in his view, is anathema. “What I’m not willing to do is go back to the days when…” is a phrase that begins many a sentence in his repertory. When dealing with conservatives, his confidence in history’s purpose and beneficence is miraculously raised to almost Wilsonian levels. He may not be exactly sure where history is going, but somehow he knows it’s not going there. A certain impatience and irritability creep into his voice. If people reject his vision, he can’t be a leader—and that makes it personal. His tone turns petulant, and he begins to issue orders to follow him.
The main target of his scoldings is, of course, the House Republicans, who tend to obstruct his measures. But in a larger sense, Obama displays the Progressive impatience with politics itself. It’s not merely the separation of powers, checks and balances, and other constitutional devices that often stalemate change to which liberals object. It’s human nature in its present state, still so inclined to praise God rather than man, to venerate the past, and to be guided by a healthy self-love.
Eventually, man will be worthy of liberalism, assuming it has its way with him and conditions him to love the State as the bee loves the hive. In the meantime, it’s a constant struggle to bear with this unreconstructed individualist who would rather govern his potty little self (in Chesterton’s great phrase) according to his own lights than be well governed by experts for his own (purported) good.
Obama, like most liberal thinkers, dreams of overcoming man’s stubbornly political nature in two ways, by assimilating politics either to the family or to the military. He began his 2011 State of the Union address by invoking the first theme: “We are part of the American family,” and together as one we’re going to “win the future”—a slogan with deeply Social Darwinist roots, by the way.
After the future business didn’t pan out so well in numerous scrapes with the House GOP, his frustration took a different direction a year later. In his 2012 State of the Union, after celebrating Osama bin Laden’s killing and the withdrawal of combat forces from Iraq, the President focused on the “courage, selflessness, and teamwork of America’s armed forces”:
At a time when too many of our institutions have let us down, they exceed all expectations. They’re not consumed with personal ambition. They don’t obsess over their differences. They focus on the mission at hand. They work together…. Imagine what we could accomplish if we followed their example.
Yes, if politics were rigidly hierarchical, if we had to follow orders from above without question, and if living together as a free people were as unequivocal and straightforward an affair as pumping bullets into bin Laden, then we could accomplish a lot more—or a lot less, depending on how highly you value democratic self-government as an accomplishment. And the truth is that the leadership paradigm values freedom and self-rule much less than it does getting things done, attacking social problems, and making sure that liberal programs survive the struggle for existence on Capitol Hill.
Leadership is a term from the military side of politics, and one of the reasons the Founders resisted it was their determination to preserve republican politics as a civilian forum, as the activity of a free people ruling itself. A standing army might be necessary for that people’s defense, but citizens had no business longing to exchange political debate and deliberation for military solidarity and discipline.
On his better days, President Obama knows that, but this wasn’t one of them. He went on: “When you put on that uniform, it doesn’t matter if you’re black or white; Asian or Latino; conservative or liberal; rich or poor; gay or straight.” Nor does it matter, by the way, whether you think the war is just or unjust, prudent or imprudent.
It might seem that liberals have come a long way from the protest days of the 1960s when many of them lustily denounced the American war machine; but in fact, they’re still compensating or overcompensating for their contempt of the U.S. military back then. At the same time, they are returning to an older Progressive tradition, highly visible in the New Deal, of trying vainly to make politics the moral equivalent of war. In any event, no one has to put on a uniform to be an equal citizen with equal rights under our Constitution.
Progressivism Without Progress?
To make possible a governing liberal majority, Obama has to rehabilitate liberalism’s reputation, to separate it as much as possible from the radical politics of the Sixties and the burden of defending big government.
President Clinton began this renewal in the 1990s. In some ways, Obama continues and sharpens Clinton’s efforts, wringing all the benefits he can out of the appearance of post-partisanship while making few sacrifices of substance. He far outshines Clinton, however, in telling the story of America in a way that reinforces a resurgent liberalism. More than any other Democratic President since FDR, Obama has an impressive interpretation of American history that culminates in him and that reworks and counters Reagan’s view of our history as the working out of American exceptionalism (including divine favor), individualism, limited government, free-market economics, and time-tested morals.
As a writer, Obama’s strength is telling stories, and his account of America is a kind of story, mixing social, intellectual, and political history. It begins with the Founding—with the Declaration of Independence and Constitution. He tries to construct a new consensus view of the country that acknowledges and then contextualizes traditional views in a way meant to be reassuring but that points to very untraditional conclusions. For instance, in The Audacity of Hope, in a chapter titled “Values,” he quotes the Declaration’s famous sentence on self-evident truths and then comments:
Those simple words are our starting point as Americans; they describe not only the foundations of our government but the substance of our common creed. Not every American may be able to recite them; few, if asked, could trace the genesis of the Declaration of Independence to its roots in eighteenth-century liberal and republican thought. But the essential idea behind the Declaration—that we are born into this world free, all of us; that each of us arrives with a bundle of rights that can’t be taken away by any person or any state without just cause; that through our own agency we can, and must, make of our lives what we will—is one that every American understands.
It sounds almost Lincolnian until one notices that the rights in this bundle are not said to be natural, exactly, nor true and certainly not self-evident; they are an outgrowth of 18th century political thought, too recondite for most Americans to know or remember. Abraham Lincoln, when explaining the Declaration, traced its central idea to God and nature, not to 18th century ideologies. He called for “all honor to Jefferson” for introducing “into a merely revolutionary document, an abstract truth, applicable to all men and all times.” When Jefferson was asked about the document’s source and purpose, he looked to common sense as well as to a much older and richer philosophical tradition.
A commonsense argument harmonious with the political principles of Aristotle, Cicero, Locke, and Sidney and proceeding from an abstract truth, applicable to all men and all times, could hardly be a simple distillation of 18th century ideologies—unless, of course, Jefferson and Lincoln didn’t know what they were talking about. If they spoke for their age without knowing so, if they were men of their times but didn’t realize it, then like their 21st century countrymen, they too would have been ignorant of their 18th century wellsprings, but precisely because they were living in or at least not long after the 18th century!
Returning to Obama’s American story, we see that it blends two themes: individualism (symbolized in the Declaration) and “unity” (symbolized in the Constitution’s commitment to “a more perfect Union”). The latter phrase, plucked from the Preamble, has long been a favorite of liberals from Wilson to Bill Clinton. For Obama, unity means being your brother’s and sister’s keeper; it means coming together “as one American family.” “If fate causes us to stumble or fall, our larger American family will be there to lift us up,” he explains.
In real life, he hasn’t exactly been there to lift up his aunt in Boston or his hut-dwelling half brother in Kenya, but then families in real life often disappoint. Even so, the family’s failings only leave more work for the State. Membership in it confers or protects our “dignity,” Obama argues, in the sense of guaranteeing “a basic standard of living” and effectively sharing “life’s risks and rewards for the benefit of each and the good of all.” And no one can enjoy “dignity and respect” without a society that guarantees both “social justice” and “economic justice.”
These ramify widely, demanding, in Obama’s words, that “if you work in America you should not be poor”; that a college education should be every child’s “birthright”; and that every American should have broadband access. Lately, he’s feeling even more generous. The “basic American promise,” he said in his 2012 State of the Union address, was and should be again that “if you worked hard, you could do well enough to raise a family, own a home, send your kids to college, and put a little away for retirement.”
That sounds more like winning life’s lottery than a promise that anyone could justly demand be fulfilled. Notice how craftily, however, Obama shifts his examples of social duty from picking up the fallen to sending someone else’s kids to college. How easily liberal magicians transform needs into desires and desires into rights. They do it right before our eyes and never explain the secret of the trick. Still, it’s revealing that he doesn’t go whole hog, turning such socioeconomic goods explicitly into rights and cataloging them for our wonderment. Chastened by the right-wing and middle-class backlash against welfare rights, he follows Bill Clinton in silently recasting, say, the right to go to college on someone else’s money as an “investment” in “opportunity.” As Obama presents it:
…opportunity is yours if you’re willing to reach for it and work for it. It’s the idea that while there are few guarantees in life, you should be able to count on a job that pays the bills; health care for when you need it; a pension for when you retire; an education for your children that will allow them to fulfill their God-given potential.
Actually, there are quite a few “guarantees” in a life lived in Obama’s America. Even as he’s wary of rights talk after the Sixties’ implosion, he also denies any fondness for “big government.” Newfangled rights would imply a big government to provide them. He’s not in favor of that; he supports “active government.” These aren’t blank-check rights because the recipient has some reciprocal responsibilities—filling out the enrollment forms, showing up at class, making passing grades, and the like. But the obligations are usually minimal, and besides, don’t responsibilities and rights usually keep a house together? So these are rights of a sort, and Obama said so explicitly a month before the 2008 election in a CNN debate with John McCain. Asked whether health care was a privilege, a responsibility, or a right, he replied, “Well, I think it should be a right for every American.” But he had avoided saying so up to that point.
Obama leaves the relationship between individualism and “a more perfect union” up in the air, to be settled pragmatically. Every society has a similar tension between “autonomy and solidarity,” he writes, and “it has been one of the blessings of America that the circumstances of our nation’s birth allowed us to negotiate these tensions better than most.” The circumstances, not the principles, of our nation were key, because the wide-open continent allowed individuals to head west and form new communities to their liking whenever they wanted to.
But the continent filled up; big corporations gradually took over from the family farm, just as Wilson and FDR had explained generations before; and soon our “values” were in a more serious conflict that required a bigger government to help reconcile. Unfortunately, that government proved enduringly unpopular with conservatives, who refused to adjust to the new times; and so finding the proper balance between the individual and the community continues to stoke our increasingly polarized and polarizing political debates.
Though he hails the Constitution as a mechanism of “deliberative democracy,” Obama doesn’t mean by that a back-and-forth on public policy conducted by the executive and legislative branches with input from the people. Deliberation of that kind, endorsed by The Federalist and consistent with natural rights, would seek means to the ends of constitutional government. That’s too narrow for Obama, who seeks deliberation about the ends, or at least about what our rights will be and what the Constitution should mean in the age that is dawning. He wants to turn all of the Constitution’s mechanisms—separation of powers, federalism, checks and balances—into ways of forcing a “conversation” about our identity. In such a conversation, “all citizens are required to engage in a process of testing their ideas against an external reality, persuading others of their point of view, and building shifting alliances of consent.”
Required? An external reality? And who judges whether the resulting conversation meets the requirements of democracy or not? Obama deplores the bile in our contemporary politics, and it must puzzle him that he causes so much of it. But he’s asking for it. As Bill Buckley used to say, liberals always talk about their tolerance and eagerness to engage with other views, but they’re always surprised to find that there are other views.
Obama expects 21st century people to have, roughly speaking, 21st century views, as he does. What then of Jefferson and his 18th century compeers? Obama soon makes clear that despite their fine words, Jefferson and the other Founders were less than faithful to the liberal and republican inferences of the principles they proclaimed. Like a good law school professor, in The Audacity of Hope, Obama lines up evidence and argument on both sides before concluding that, in fact, the Founders probably did not understand their principles as natural and universal, despite their language, but rather as confined to the white race. The Declaration of Independence “may have been,” he says, a transformative moment in world history, a great breakthrough for freedom, but “that spirit of liberty didn’t extend, in the minds of the Founders, to the slaves who worked their fields, made their beds, and nursed their children.” As a result, the Constitution “provided no protection to those outside the constitutional circle,” to those who were not “deemed members of America’s political community”: “the Native American whose treaties proved worthless before the court of the conqueror, or the black man Dred Scott, who would walk into the Supreme Court a free man and leave a slave.”
Obama doesn’t argue, as Lincoln did, that the Supreme Court majority was in error, that Dred Scott was wrongly and unjustly returned to slavery, and that Chief Justice Roger Taney’s dictum—that, in the Founders’ view, the black man had no rights that the white man was bound to respect—was a profound solecism. On the contrary, Obama accepts Dred Scott as rightly decided according to the standards of the time. He agrees, in effect, with Taney’s reading of the Declaration and the Constitution, and with Stephen Douglas’s as well. Despite his admiration for Lincoln, Obama sides with Lincoln’s opponents in their interpretation of Jefferson and the Declaration as pro-slavery. Obama regards the original intention of both the Declaration and the Constitution to be racist and even pro-slavery, but he refrains from making the point explicit.
His understanding of the past thus pays lip service to such things as self-evident truths, original intent, and first principles but quickly changes the subject to values, visions, dreams, ideals, myths, and narratives. This is a postmodern “move.” We can’t know or share truth, postmodernists assert, because there is no truth “out there,” but we can share stories and thus construct a community of shared meaning. It’s these ideas that mark his furthest departure from old-fashioned liberalism.
More and less radical, more and less nihilist—Obama comes in on the “less” side, but then a little bit of nihilism goes a long way. “Implicit…in the very idea of ordered liberty,” he writes in The Audacity of Hope, is “a rejection of absolute truth, the infallibility of any idea or ideology or theology or ‘ism,’ any tyrannical consistency that might lock future generations into a single, unalterable course, or drive both majorities and minorities into the cruelties of the Inquisition, the pogrom, the gulag, or the jihad.” There is no absolute truth—and that’s the absolute truth, he argues. Such feeble, self-contradictory reasoning is at the heart of Obama’s very private and yet very public struggle with himself to determine whether there is anything anywhere that can truly be known, or even that is rational to have faith in. Anyone who believes, really believes, in absolute truth, he asserts, is a fanatic or in imminent danger of becoming a fanatic; absolute truth is the mother of extremism everywhere.
Although it’s certainly a good thing that America avoided religious and political tyranny, no previous President has ever credited this achievement to the Founders’ rejection of absolute truth, previously known as “truth.” Is the idea that human freedom is right, slavery wrong, thus to be rejected lest we embrace an “absolute truth”? What becomes of the “universal truths” Obama himself celebrates on occasion? Surely the problem is not with the degree of belief, but with the falseness of the causes for which the Inquisition, the pogrom, the gulag, and the jihad stood. A fervent belief in religious liberty is not equivalent to a fervent belief in religious tyranny any more than a passionate belief in democracy is equivalent to a passionate longing for dictatorship.
In The Audacity of Hope, within two pages of his criticism of the Founders for allegedly excluding black Americans from constitutional protection as equal human beings and citizens, he warns against all such sweeping truth claims and indeed praises the Founders for being “suspicious of abstraction.” On every major question in America’s early history, he writes, “theory yielded to fact and necessity…. It may be the vision of the Founders that inspires us, but it was their realism, their practicality and flexibility and curiosity, that ensured the Union’s survival.” Obama cannot decide whether to blame the Founders as racists or to celebrate them as relativists; to assail them for not applying their truths absolutely to blacks and Indians along with whites or to praise them for compromising their too absolute principles for the sake of something concrete.
His attempt to resolve this contradiction carries him into still deeper and murkier waters. Obama turns for inspiration to the abolitionists, drawing no distinction between a superb publicist and reasoner like Frederick Douglass and a butcher like John Brown, who was happy “to spill blood and not just words on behalf of his visions.” Both were “absolutists,” which, by Obama’s definition, means they were “unreasonable” but willing to fight for “a new order.” He goes on to confess he has a soft spot for “those possessed of similar certainty today”—for example, the “antiabortion activist” or the “animal rights activist” who’s willing to break the law. He seems to suffer from certainty envy. He respects passionate, even fanatic commitment as such. Though he may “disagree with their views,” he admits that “I am robbed even of the certainty of uncertainty—for sometimes absolute truths may well be absolute.” Not true, necessarily, but absolute. It’s hard to know what he means exactly. That the “truths” are fit for the times, are destined to win out and forge a “new order”? That they are willed absolutely, not pragmatically or contingently? Even his rejection of absolute truth is now uncertain.
So, finally, in his perplexity, he turns again to Lincoln. Like “no man before or since,” Lincoln “understood both the deliberative function of our democracy and the limits of such deliberation.” His presidency combined firm convictions with practicality or expediency. Obama seems never to have heard of prudence, the way a statesman (and a reasonable and decent person) moves from universal principles to particular conclusions in particular circumstances. The 16th President, he ventures, was humble and self-aware, “maintaining within himself the balance between two contradictory ideas,” that we are all imperfect and thus must reach for “common understandings” and that at times “we must act nonetheless, as if we are certain, protected from error only by providence.”
For a man like Lincoln, there is no such thing, he says in effect, as acting with moral certainty, only acting “as if we are certain,” God help us. Unlike John Brown, Lincoln was an absolutist who realized the limitations of absolutism yet still brought forth a new order. “Lincoln, and those buried at Gettysburg,” Obama concludes, “remind us that we should pursue our own absolute truths only if we acknowledge that there may be a terrible price to pay.” Our own absolute truths? Those words ought to send a shudder down Americans’ constitutional spine, assuming we still have one.
The Liberal Crisis
Liberals like crises, and one shouldn’t spoil them by handing them another on a silver salver. The kind of crisis that is approaching, however, is probably not their favorite kind—an emergency that presents an opportunity to enlarge government—but one that will find liberalism at a crossroads, a turning point. Liberalism can’t go on as it is, not for very long. It faces difficulties both philosophical and fiscal that will compel it either to go out of business or to become something quite different from what it has been.
For most of the past century, liberalism was happy to use relativism as an argument against conservatism. Those self-evident truths that the old American constitutional order rested on were neither logically self-evident nor true, Woodrow Wilson and his followers argued, but merely rationalizations for an immature, subjective form of right that enshrined selfishness as national morality. What was truly evident was the relativity of all past views of morality, each a reflection of its society’s stage of development. But there was a final stage of development when true morality would be actualized and its inevitability made abundantly clear—that is, self-evident.
Disillusionment came when the purported end or near end of history coincided not with idealism justified and realized, but with what many liberals in the 1960s, especially the young, despaired of as the infinite immorality of poverty, racial injustice, Vietnam, the System, and the threat of nuclear annihilation. Relativism rounded on liberalism. Having promised so much, liberalism was peculiarly vulnerable to the charge that the complete spiritual fulfillment it once promised was neither complete nor fulfilling.
As Obama’s grappling shows, intelligent and morally sensitive liberals may try to suppress or internalize the problem of relativism, but it cannot be forgotten or ignored. Despite his investment in deliberative democracy, communitarianism, and pragmatic decision making, he’s willing to throw it all aside at the moment of decision because it doesn’t satisfy his love of justice, or rather his love of a certain kind of courage or resolute action. “The blood of slaves reminds us that our pragmatism can sometimes be moral cowardice,” he writes. In a moment like that, a great man must follow his own absolute truth, and the rest of us are left hoping it is Lincoln and not John Brown, much less Jefferson Davis, whose will is triumphant. The great man doesn’t anticipate or follow or approximate history’s course; he creates it, wills it according to his own absolute will, not absolute knowledge.
When combined with liberalism’s lust for strong leaders, this openness to Nietzschean creativity looms dangerously over the liberal future. If we are lucky, if liberalism is lucky, no one will ever apply for the position of liberal “superhero,” in Michael Tomasky’s term, and the role will remain vacant. But as Lincoln asked in the Lyceum speech, “Is it unreasonable then to expect, that some man possessed of the loftiest genius, coupled with ambition sufficient to push it to its utmost stretch, will at some time, spring up among us?”
And when such a one does, it will require the people to be united with each other, attached to the government and laws, and generally intelligent, to successfully frustrate his designs. Distinction will be his paramount object; and although he would as willingly, perhaps more so, acquire it by doing good as harm; yet, that opportunity being past, and nothing left to be done in the way of building up, he would set boldly to the task of pulling down.
More worrisome even than the danger of a superman able to promise that everything desirable will soon be possible is a people unattached to its constitution and laws; and for that, liberalism has much to answer.
In one crucial respect, our situation would seem more perilous than the future danger Lincoln sketched insofar as the very definitions of political “good” and “harm” are now uncertain. Avant-garde liberalism used to be about progress; now it’s about nothingness. You call that progress? Perhaps, paradoxically, that’s why Obama prefers to be called a progressive rather than a liberal. It’s better to believe in something than in nothing, even if the something, Progress, is not as believable as it used to be. His residual progressivism helps insure him against his instinctual postmodernism. Still, liberalism is in a bad way when it has lost confidence in its own truth, and it’s an odd sort of “progress” to go back to a name it surrendered 80 years ago.
Adding to liberal self-doubt is that liberalism’s monopoly on the social sciences, long since broken, has been supplanted by a multiple-front argument with conservative scholars in economics, political science, and other fields. In the beginning, Progressivism commanded all the social sciences because it had invented or imported them all. Wilson, Franklin Roosevelt, and Lyndon Johnson could be confident in the inevitability of progress, despite temporary setbacks, because the social sciences backed them up. An expertise in administering progress existed, and experts in public administration, Keynesian economics, national planning, urban affairs, modernization theory, development studies, and a half-dozen other specialties beavered away at bringing the future to life.
What a difference a half-century makes. The vogue for national planning disappeared under the pressure of ideas and events. Friedrich Hayek demonstrated why socialist economic planning, lacking free-market pricing information, could not succeed. In a side-by-side experiment, West Germany far outpaced East Germany in economic development, and all the people escaping across the Wall traveled from east to west, leaving their workers’ paradise behind. Keynesianism flunked the test of the 1970s stagflation. The Reagan boom, with its repeated tax cuts, flew in the face of the orthodoxy at the Harvard Department of Economics but was cheered by the Chicago School. Milton Friedman’s advice to Chile proved far sounder than Jeffrey Sachs’s to Russia. Monetarism, rational choice economics, supply-side, “government failure,” “regulatory capture,” “incentive effects”—the intellectual discoveries were predominantly on the Right. Conservative and libertarian think tanks multiplied, carrying the new insights directly into the fray.
The scholarly counterattack proceeded in political science and the law, too. Rational choice and “law and economics” changed the agenda to some degree. Both politics and the law became increasingly “originalist” in bearing, enriched by a new appreciation for 18th century sources and the original intent of the Founders and the Framers of the Constitution. Above all, the Progressives’ attempt to replace political philosophy with social science foundered.
After World War II, an unanticipated and at first unheralded revival of political philosophy began, associated above all with Leo Strauss, questioning historicism and nihilism in the name of a broadly Socratic understanding of nature and natural right. New studies of the tradition yielded some very untraditional results. Though there were left-wing as well as right-wing aspects to this revival, the latter proved more influential and liberating. The unquestionability of both progress and relativism died quietly in classrooms around the country. Economics is an instrumental science, studying means not ends, and so much of the successes of free-market economics could be swallowed pragmatically by liberalism’s maw. The developments in political philosophy challenged the ends of Progressivism, proving far more damaging to it.
In sheer numbers, the academy remained safely, overwhelmingly in the hands of the Left, whose members in fact grew more radical, with some notable exceptions, in these years. But they gradually lost the unchallenged intellectual ascendancy, though not the prestige, they once had enjoyed.
Thanks to this intellectual rebirth, the case against Progressivism and in favor of the Constitution is stronger and deeper than it has ever been. Progressivism has never been in a fair fight, an equal fight, until now, because its political opponents had largely been educated in the same ideas, had lost touch, like Antaeus, with the ground of the Constitution in natural right, and so tended to offer only Progressivism Lite as an alternative.
The sheer superficiality of Progressive scholarship is now evident. Progressives could never take the ideas of the Declaration and Constitution seriously for many of the same reasons that Obama cannot ultimately take them seriously. Wilson never demonstrated that the Constitution was inadequate to the problems of his age—he asserted it, or rather assumed it. His references to The Federalist are shallow and general, never betraying a close familiarity with any paper or papers, and willfully ignorant of the separation of powers as an instrument to energize and hone, not merely limit, the national government. Though he thought of himself as picking up where Hamilton, Webster, and Lincoln had left off, Wilson never investigated where they left off and why. Neither he nor his main contemporaries asked how far The Federalist’s or Lincoln’s reading of national powers and duties might take them, because they assumed it would not take them very far, that it reflected the political forces of its age and had to be superseded by new doctrines for a new age. They weren’t interested in Lincoln’s reasons, only in his results. Not right but historical might was the Progressives’ true focus.
Today liberalism looks increasingly, well, elderly. Hard of hearing, irascible, enamored of past glories, forgetful of mistakes and promises, prone to repeat the same stories over and over—it isn’t the youthful voice of tomorrow it once imagined itself to be. Only a rhetorician of Obama’s youth and artfulness could breathe life into the old tropes again.
Even he can’t repeat the performance in 2012. With a track record to defend, he will have to speak more prose and less poetry. With a century-old track record, liberalism will find it harder than ever to paint itself as the disinterested champion of the public good. Long ago, it became an Establishment, one of the estates of the realm, with its court-party of notoriously self-interested constituencies: the public employee unions, the trial lawyers, the feminists, the environmentalists, and the corporations aching to be public utilities paying private-sector salaries. Not visions of the future, but visions of plunder come to mind. This is one side of what Walter Russell Mead means when he criticizes the “blue state social model” as outmoded and heavy-handed.
The Patient Protection and Affordable Care Act is about as sleek and innovative as the several phone books’ worth of paper it takes up in printed form. Can one imagine Steve Jobs’s reaction if he had been tasked with reading, much less implementing, the PPACA? It is exhibit A in the case for the intellectual obsolescence of liberalism.
Finally, we come to the fiscal embarrassments confronting contemporary liberals. Again, Obamacare is wonderfully emblematic. President Obama’s solution to the problem of two health care entitlement programs quickly going bankrupt—Medicare and Medicaid—is to add a third? Perhaps it is a stratagem. More likely it is simply the reflexive liberal solution to any social problem: Spend more.
From Karl Marx to John Rawls, if you’ll excuse the juxtaposition, left-wing critics of capitalism have often paid it the supreme compliment of presuming it so productive an economic system that it has overcome permanently the problem of scarcity in human life. Capitalism has generated a “plenty.” It has distributional problems, which produce intolerable social and economic instability; but eliminate or control those inconveniences and it could produce wealth enough not only to provide for every man’s necessities, but also to lift him into the realm of freedom. To some liberals, that premise implied that socioeconomic rights could be paid for without severe damage to the economy and without oppressive taxation, at least of the majority.
Obama is the first liberal to suggest that even capitalism cannot pay for all the benefits promised by the American welfare state, particularly regarding health care. Granted, his solution is counterintuitive in the extreme, which makes one wonder if he is sincere. To the extent that liberalism is the welfare state, and the welfare state is entitlement spending, and entitlements are mostly spent effecting the right to health care, the insolvency of the health care entitlement programs is rightly regarded as a major part of the economic and moral crisis of liberalism. “Simply put,” Yuval Levin writes, “we cannot afford to preserve our welfare state in anything like its present form.” According to the Congressional Budget Office, by 2025, Medicare, Medicaid, Social Security, and the interest on the federal debt will consume all—all—federal revenues, leaving defense and all other expenditures to be paid for by borrowing; and the debt will be approaching twice the country’s annual GDP.
If something can’t go on forever, Herbert Stein noted sagely, it won’t. It would be possible to increase federal revenues by raising taxes, but the kind of money that’s needed could only be raised by taxing the middle class (defined, let us say, as all those families making less than $250,000 a year) very heavily. Like every other Democratic candidate since Walter Mondale, who made the mistake of confessing to the American people that he was going to raise their taxes, Obama swore not to do that.
If the bankruptcy of the entitlement programs were handled just the right way, with world-class cynicism and opportunism, in an emergency demanding quick, painful action lest Grandma descend into an irreversible diabetic coma, then liberalism might succeed in maneuvering America into a Scandinavia-style überwelfare state, fueled by massive and regressive taxes cheerfully accepted by the citizenry. But odds are we stand instead at the twilight of the liberal welfare state. As it sinks, a new, more conservative system will likely rise that will feature some combination of more means-testing of benefits, a switch from defined-benefit to defined-contribution programs, greater devolution of authority to the states and localities, a new budget process that will force welfare expenditures to compete with other national priorities, and the redefinition of the welfare function away from fulfilling socioeconomic “rights” and toward charitably taking care of the truly needy as best the community can afford when private efforts have failed or proved inadequate.
Currently, the welfare state operates almost independently alongside the general government. Taken together, these reforms will work to reintegrate the welfare state into the government, curtailing its state-within-a-state status and, even more important, integrating it back into the constitutional system that stands on natural rights and consent.
Is it just wishful thinking to imagine the end of liberalism? Few things in politics are permanent. Conservatism and liberalism didn’t become the central division in our politics until the middle of the 20th century. Before that, American politics revolved around such issues as states’ rights, the wars, slavery, the tariff, and suffrage. Parties have come and gone in our history. You won’t find many Federalists, Whigs, or Populists lining up at the polls these days. Britain’s Liberal Party faded from power in the 1920s. The Canadian Liberal Party collapsed in 2011.
Recently, within a decade of its maximum empire at home and abroad, a combined intellectual movement, political party, and form of government crumbled away, to be swept up and consigned to the dustbin of history. Communism, which in a very different way from American liberalism traced its roots to Hegel, Social Darwinism, and leadership by a vanguard group of intellectuals, vanished before our eyes, though not without an abortive coup or two. If Communism, armed with millions of troops and thousands of megatons of nuclear weapons, could collapse of its own dead weight and implausibility, why not American liberalism?
The parallel is imperfect, of course, because liberalism and its vehicle, the Democratic Party, remain profoundly popular, resilient, and changeable. Elections matter to them. What’s more, the egalitarian impulse, centralized government (though not centralized administration), and the Democratic Party have deep roots in the American political tradition—and reflect permanent aspects of modern democracy itself, as Tocqueville testifies.
Some elements of liberalism are inherent in American democracy, then, but the compound, the peculiar combination that is contemporary liberalism, is not. Compounded of the Hegelian philosophy of history, Social Darwinism, the living constitution, leadership, the cult of the State, the rule of administrative experts, entitlements and group rights, and moral creativity, modern liberalism is something new and distinctive, despite the presence in it, too, of certain American constants like the love of equality and democratic individualism.
Under the pressure of ideas and events, that compound could come apart. Liberals’ confidence in being on the right, the winning side of history could crumble, perhaps has already begun to crumble. Trust in government, which really means in the State, is at all-time lows. A majority of Americans oppose a new entitlement program—in part because they want to keep the old programs unimpaired, but also because the economic and moral sustainability of the whole welfare state grows more and more doubtful. The goodwill and even the presumptive expertise of many government experts command less and less respect. Obama’s speeches no longer send the old thrill up the leg, and his leadership, whether for one or two terms, may yet help to discredit the respectability of following the Leader.
The Democratic Party is unlikely to go poof, but it’s possible that modern liberalism will. A series of nasty political defeats and painful repudiations of its impossible dreams might do the trick. At the least, it will have to downsize its ambitions and get back in touch with political, moral, and fiscal reality. It will have to—all together now—turn back the clock. Much will depend, too, on what conservatives say and do in the coming years. Will they have the prudence and guile to elevate the fight to the level of constitutional principle, to expose the Tory credentials of their opponents?
President Obama’s decision to double down aggressively on the reach and cost of big government just as the European model of social democracy is hitting the skids provides the perfect opportunity for conservatives to exploit. His course makes the problems of liberalism worse and more urgent, as though he is eager for a crisis. Sooner or later, the crisis will come. If the people remain attached to their government and laws and American statesmen do their part, the country may yet take the path leading up from liberalism.
—Charles R. Kesler, Ph.D., is a senior fellow at the Claremont Institute, editor of the Claremont Review of Books, and professor of government at Claremont McKenna College. He is the author of I Am the Change: Barack Obama and the Crisis of Liberalism (Broadside Books, 2012), from which this essay was adapted.
Stanley Kurtz, Radical-in-Chief: Barack Obama and the Untold Story of American Socialism (New York: Threshold Editions, 2010), pp. 1–11, 21–60, 71–77, 86.
See Barack Obama, Remarks Following the Iowa Caucuses, January 3, 2008, http://www.presidency.ucsb.edu/ws/index.php?pid=76232&st=&st1=#axzz1lvulJr36.
Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream (New York: Crown Publishers, 2006), p. 53.
Abraham Lincoln, Letter to H. L. Pierce and Others, April 6, 1859, in The Collected Works of Abraham Lincoln, ed. Roy P. Basler (New Brunswick, N.J.: Rutgers University Press, 1953), vol. 3, p. 376; Thomas Jefferson, Letter to Henry Lee, May 8, 1825, and Letter to Roger Weightman, June 24, 1826, in Thomas Jefferson: Writings, ed. Merrill D. Peterson (New York: Library of America, 1984), pp. 1501, 1517. For a commentary, see Harry V. Jaffa, A New Birth of Freedom (Lanham, Md.: Rowman & Littlefield, 2000), ch. 2.
Barack Obama, “A Hope to Fulfill,” Remarks of Senator Barack Obama at the National Press Club, April 26, 2005, http://obamaspeeches.com/014-National-Press-Club-Speech.htm; Remarks Following the Wisconsin Primary, February 19, 2008, http://www.presidency.ucsb.edu/ws/index.php?pid=76558&st=&st1=#axzz1lvulJr36; Remarks in St. Paul, Minnesota, Claiming the Democratic Presidential Nomination Following the Montana and South Dakota Primaries, June 3, 2008, http://www.presidency.ucsb.edu/ws/index.php?pid=77409&st=&st1=#axzz1lvulJr36; Address Before a Joint Session of Congress on the State of the Union, January 24, 2012, http://www.presidency.ucsb.edu/ws/index/index.php?pid=99000#axzz1lvulJr36; and James T. Kloppenberg, Reading Obama: Dreams, Hope, and the American Political Tradition (Princeton, N.J.; Princeton University Press, 2011), pp. 89–110, 139–40.
Barack Obama, Comments at Presidential Debate at Belmont University in Nashville, Tennessee, October 7, 2008, http://www.presidency.ucsb.edu/ws/index.php?pid=84482&st=&st1=#axzz1lvulJr36.
Obama, The Audacity of Hope, pp. 55, 92.
Ibid., p. 95.
Ibid., pp. 93–96. Obama echoes, and radicalizes, Woodrow Wilson’s distinction between the Founders as time-bound theorists and as competent statesmen.
Ibid., pp. 97–98.
Ibid., p. 98.
See, for example, Walter Russell Mead, “Beyond the Blue Part One: The Crisis of the American Dream,” American Interest, January 29, 2012, http://blogs.the-american-interest.com/wrm/2012/01/29/beyond-blue-part-one-the-crisis-of-the-american-dream/.
Yuval Levin, “Beyond the Welfare State,” National Affairs, Spring 2011, pp. 21–38, 30, 32.
A review of I Am the Change: Barack Obama and the Crisis of Liberalism by Charles R. Kesler
Four years ago, in the excited aftermath of the 2008 election, Barack Obama was widely viewed as a liberal messiah who would engineer a new era of liberal reform and cement a Democratic majority for decades to come. He would prove to be, as many pundits predicted, a Franklin Delano Roosevelt, or perhaps even an Abraham Lincoln, for our time. They were not alone in saying this: Obama himself said much the same thing.
These forecasts seemed grandiose at the time; today, after four years of an Obama presidency, they look positively silly. In contrast to 2008, 2012 Obama looks less like a transformational president and more like a typically embattled politician trying to survive a tight contest for reelection. Even some of his strongest supporters are now “defining Obama down” as just another Democratic “pol” making compromises and paying off constituencies in order to keep his coalition together. Extravagant hopes have given way to a scramble for survival. Few continue to believe that Obama will establish the foundations for a new era of liberal governance. Some are beginning to point toward a more surprising turn of events: Far from bringing about a renewal of liberalism, Obama is actually presiding over its disintegration and collapse.
This is the thesis of Charles R. Kesler’s fascinating and insightful new book, I Am the Change: Barack Obama and the Crisis of Liberalism.1 Mr. Kesler, a professor of government at Claremont McKenna College and editor of The Claremont Review, is a well-known conservative scholar and authority on the history of liberal thought. Professor Kesler presents a critical yet nuanced portrayal of Obama and his rise to power. From his perspective as scholar and theorist, Kesler sees Obama as a conventional liberal or, better yet, as a progressive, and not as a socialist or anti-American subversive (as some of the President’s critics would have it). Viewed through a wide historical lens, Obama appears as the most recent—and perhaps the last—of a line of liberal presidents beginning with Woodrow Wilson a century ago and running through FDR to Lyndon Johnson and beyond to Jimmy Carter and Bill Clinton. A signal virtue of this book is that it shows how the Obama presidency fits into the evolution of modern liberalism from its origins in the Progressive movement more than a century ago.1
The great political battles in the United States during the nineteenth century were never ideological contests in the modern sense but rather controversies fought over the meaning of the Constitution and the intentions of the founding fathers. Political contests over expansion, the Bank of the United States, slavery, secession, and the regulation of commerce were fought out along constitutional lines. The politicians and statesmen of that era were not divided into liberal and conservative camps; those terms had little meaning in nineteenth-century America. Abraham Lincoln was not thought of as a “liberal,” nor were slave owners derided as “conservatives.” Both sides of that controversy appealed to the Constitution or to the Declaration of Independence to defend their positions.
The Progressives introduced an ideological element into American politics by detaching their arguments from the Constitution and grounding them instead in claims about progress and historical development. Progressives (they were not yet called “liberals”) asserted that the Constitution, with its complex framework designed to limit government, was out of date in the modern age of science, industrialism, and large trusts and corporations. Constitutionalists looked backwards to the founding fathers; Progressives looked forward to a vast future of never-ending progress and change. The founding fathers and their nineteenth-century successors anchored popular government in a philosophy of natural rights; Progressives looked to different foundations in history and development. Progressives could not get rid of the Constitution, but they could reinterpret it to allow for more federal action to regulate the trusts, resolve industrial disputes, and engineer progress. Thus was born the idea of a “living Constitution,” an open-ended and flexible document readily adapted to changing conditions.
The Progressives were proponents of scientific government, not necessarily of popular or representative government. They disdained legislative bodies with their vote-trading and petty disputes over constituent interests; thus, they looked to the presidency rather than to the Congress for national leadership in the direction of reform and progress. The president spoke for the people or the nation, Congress spoke for special interests. Progressives wanted to delegate power to administrative bodies, commissions, and bureaus staffed by disinterested experts who could apply up-to-date knowledge to solve new problems. The Interstate Commerce Commission, the Food and Drug Administration, the Federal Trade Commission, and the Federal Reserve Board were Progressive initiatives. The Progressives dreamed of a time when political contests among rival interests would give way to impartial administration by experts and judges trained by and recruited from the best colleges and universities in the land. Academic institutions, as Mr. Kesler points out, would go on to play a major role in the evolution of liberalism.
Professor Kesler identifies Woodrow Wilson as the chief architect of this vision in American politics, helping to lay the intellectual foundations for progressivism and then beginning to put them in place during his term as president. As a research scholar and university president, Wilson brought some of the abstract qualities of a college professor to the study of politics. He wrote an influential study of the US Congress without visiting the US Capitol. While he admired the founding fathers, he criticized them for leaving behind a constitutional structure that was disorderly and inefficient, and encouraged conflict rather than cooperation. Thus he claimed that the separation of powers in the Constitution was a mischievous invention designed to limit the powers of government and to prevent cooperation among the branches (which was partly true). Wilson wanted to bring the branches closer together through presidential leadership and responsible party government. He favored a parliamentary system like that in place in Great Britain in which the executive and legislative branches are unified under the control of a single party and led by the Prime Minister.
Most fundamentally of all, Wilson claimed that the vision of the founding fathers did not lead to progress but to endless division and factional infighting. The Constitution was a Newtonian machine designed to balance conflicting forces when what was now required was a Darwinian instrument flexible enough to evolve in response to changes in its environment. It was not necessary to change the Constitution itself in order to bring about such a fundamental change; it was only necessary for Americans to think about it in a new way. After all, Washington, Jefferson, and Madison led a revolution and wrote the Constitution in response to the challenges of their time: Why should not Americans in the twentieth century do the same? Thus Wilson and his associates in the Progressive movement looked to an intellectual revolution as the means by which Americans would liberate themselves from the constricted and obsolete doctrines of the founding fathers, and in the process free themselves from the limits the founders placed upon government.
Given his vast ambitions, Wilson could not hope to implement much of this agenda in eight short years in office. Yet he established the foundations for an influential and long-running movement based upon progress and change as a way of life, presidential leadership and executive power, trust in experts, and disdain for traditional constitutional forms. Mr. Kesler does not spend much time on Wilson’s path-breaking approach to international diplomacy, his role in the Paris Peace Conference, and his aborted personal campaign “to make the world safe for democracy.” Yet these may be understood as logical extensions from his broader philosophy that traditional forms of governance had reached a dead end and that new ones had to be built through inspired leadership.
It was FDR who began to use the term “liberalism” in place of “progressivism” in order to distinguish the New Deal from the Progressive Party that flamed out in the 1920s and, in contrast to the progressives, to associate his program with the founding ideals of the nation. It was also Roosevelt who hijacked the term from the classical liberals in order to associate it with reform and the welfare state in opposition to free markets and limited government. FDR, as Professor Kesler suggests in an illuminating chapter in the book, kept the language and rhetoric of the founders while not so subtly changing their meaning and purposes. This has also been true of the liberal presidents who have succeeded him.
The Republican victories during the 1920s demonstrated to Roosevelt just how fleeting and transient Wilson’s victories turned out to be. “Think of the great liberal achievements of Woodrow Wilson’s New Freedom,” he said in one of his radio addresses during the 1930s, “and how quickly they were liquidated under President Harding.” Roosevelt formulated programs (like Social Security and the Wagner Act) that had popular followings but were also grounded in the language of rights and liberty such that no one could claim that they were “un-American.” FDR paid homage to Jefferson and the Declaration of Independence, but also said that the basic rights outlined in that document were subject to redefinition in light of changes in the social order. Jefferson wrote about natural rights and liberty while FDR spoke of positive rights as a foundation for security. In his Second Bill of Rights, FDR outlined a vast agenda of such positive rights, including a right to adequate medical care, to a good education, to a decent home, to a “remunerative” job, and to adequate protection from “the fears of old age, sickness, accident, and unemployment.” The pursuit and perfection of these rights provided modern liberalism—and the Democratic Party—with an almost unlimited agenda of reform.
Among FDR’s successors, no one tried harder to emulate him and more miserably failed to do so than Lyndon Baines Johnson. Johnson began his political career in the 1930s as a New Deal functionary and then as a young member of the House of Representatives. “FDR was my hero; he was like a father to me,” Johnson told a reporter during his White House years. Johnson mastered the art of using public patronage to build political support. “He wanted to out-Roosevelt Roosevelt,” according to one of his aides. “We’re in favor of a lot of things and against mighty few,” he said during his 1964 campaign, thereby giving voters a taste of things to come.
Johnson, as Professor Kesler explains, sought to complete the agenda of quantitative liberalism by passing federal health insurance programs for the aged (Medicare) and the poor (Medicaid), and expanded welfare and food stamp programs to assist the underprivileged. Yet, given the insatiable spirit of modern liberalism, Johnson was not content to rest there. In his Great Society speech, he proclaimed a new agenda of qualitative liberalism through which government would elevate the spirit and quality of life of the American people. The Great Society, he said, “is a place where the city of man serves not only the needs of the body and the demands of commerce but the desire for beauty and the hunger for humanity.” Johnson launched a “war on poverty” and a campaign to end urban decay, passed civil rights bills, funded the arts and education, and gave the federal government license to enter into every area of American life.
Yet, by a cruel irony, Johnson’s high hopes and grand expectations soon turned into disappointment and tragedy as the country was torn apart by crime, riots in nearly every major urban center, and violent protests against the war in Vietnam. His vast expansion of domestic expenditures turned loose an ugly stampede for federal dollars that only incited demands for more. Far from being an era of spiritual fulfillment, the 1960s was one of anger, alienation, and escape through drugs and violence. Mr. Kesler writes that the enduring legacy of the 1960s is “the strange combination, still very much with us, of a more ambitious state and a less trusted government than ever before.” The more patronage the government handed out, the less satisfied its beneficiaries became.
If the New Deal stands out as the great triumph of modern liberalism, then the Great Society represents its signal tragedy and failure. This was the period, as Mr. Kesler writes, when “the radicalism that was latent all along in liberalism broke free of its faith in progress, science, and the democratic process itself.” Johnson’s failures arose from overreaching ambitions and the delusion that all human problems, even those of the spirit, must find solutions in politics and government programs. Yet, as the author argues, this kind of over-reaching is endemic to modern liberalism. It was already present, for example, in Wilson’s claims about progress and change and also in FDR’s unlimited agenda of positive rights. Liberalism both lives and dies off promises it cannot fulfill.
Barack Obama is the latest liberal president to attempt to harmonize grand hopes with the messy realities of programmatic reform. In this sense, he is a worthy heir to the legacy of Wilson, FDR, and LBJ, all of whom addressed the same challenge. Yet of the three, only one of them may be said to have ended his presidency on a positive note. Obama hopes to join FDR/span> as one of the successful presidents of the liberal era, but Mr. Kesler doubts his prospects for success.
Like FDR, who distinguished the New Deal from the New Freedom, Obama tried to make his break from the rancorous politics of the 1960s. He celebrates the flag, observes patriotic holidays, and praises the military. He is a solid family man. He even extolls the founding fathers, up to a point. In his view, the founders made a good start in laying down some noble principles, even if they did not live up to them and perhaps did not really believe them.
Obama was also aware that many of the bold initiatives of the 1960s were eventually discredited and, for the most part, rejected by the American people. No liberal today could possibly run for office citing the model of the Great Society. Without an ambitious programmatic agenda on which to run, Obama had little choice but to organize his campaign around “hope and change.” Few asked what exactly that might mean. One answer was that Obama himself, as a biracial and multicultural candidate, son of a Kenyan father and middle-class American mother, personified the change he and others were seeking. It was proof that America could overcome its racially scarred past. “I am the change,” as he has suggested on more than one occasion.
Here, then, according to Mr. Kesler, is one terminus of the liberal project. Where can it go beyond Barack Obama and the personal politics of hope and change? Another end point is fiscal and budgetary. With Obama’s signature health care legislation, an ambitious stimulus package, a series of trillion dollar plus deficits, and the impending retirement of the baby boomers, there is no more money left to fund further liberal projects. There is not even enough money left to fund those already in place. Will Obama’s presidency mark the end of the politics of public spending and thus the end of a movement that came into its own a full century ago with the election of Woodrow Wilson? That is a distinct possibility, and one brought into clear focus in this most illuminating and gracefully argued book.
1 I Am the Change: Barack Obama and the Crisis of Liberalism by Charles R. Kesler; Broadside Books, 276 pages. $25.00.
« Les attentats sont la macabre célébration du premier anniversaire de l’Etat islamique »
Mathieu Guidère, spécialiste du terrorisme islamiste, craint que les attaques perpétrées vendredi en Isère, à Sousse (Tunisie) et à Koweït City ne soient le début d’une vague d’attentats lancée par l’organisation jihadiste.
Propos recueillis par Hervé Brusin
Un homme a tiré à la kalachnikov sur une plage de Sousse, tuant 38 personnes, vendredi 26 juin. Trois mois après le massacre du musée du Bardo, la Tunisie plonge à nouveau dans le cauchemar terroriste. Mathieu Guidère, spécialiste de géopolitique et du terrorisme islamiste, est justement originaire de ce pays. Pour francetv info, il analyse l’attentat commis à Sousse et le rapproche des autres attaques perpétrées en France et au Koweït le même jour.
Francetv info : Que vous inspire cette série d’attaques en France, en Tunisie et au Koweït ?
Mathieu Guidère : Cela fait un an maintenant qu’est apparu au grand jour l’Etat islamique (EI). Et l’on ne peut que constater qu’il a lancé les « festivités » de cet anniversaire, malgré les bombardements qu’il subit. Tout cela accompagne le début du ramadan la semaine dernière. L’EI a appelé la quasi-totalité de ses sympathisants à fêter cette première année par tous les moyens et partout dans le monde. Selon moi, les attentats perpétrés à Saint-Quentin-Fallavier (Isère), à Sousse et à Koweït City s’inscrivent dans cette macabre célébration. C’est un terrible pied de nez adressé à la communauté internationale. Et ce n’est que le début.
Pourquoi cela ?
Souvenons-nous : l’EI a commencé son offensive au début du ramadan 2014. Il a déclaré le califat le 30 juin 2014. Je pense donc que cela risque de culminer dans les semaines à venir. En outre, le mois de ramadan est considéré comme propice au jihad. Je crains donc que nous soyons face au lancement d’une campagne d’attentats.
En Tunisie spécifiquement, y a-t-il une continuité entre l’attentat du musée du Bardo en mars et la tuerie de Sousse ?
Absolument. A Sousse, l’action a été conduite par un groupe qui a fait allégeance à l’EI. Et il a clairement décidé de détruire le tourisme tunisien. Il l’a lui-même affirmé en déclarant : vous accueillez trop d’étrangers, la Tunisie n’est pas une terre pour héberger des étrangers, qui de surcroît bombardent nos frères en Syrie et en Irak. D’où la décision qui a été prise de s’attaquer systématiquement aux infrastructures du tourisme tunisien et donc, dans un premier temps, au musée du Bardo. Ce groupe s’intitule « les soldats du califat en Tunisie ».
Comment prévenir la vague d’attentats dont vous parlez ?
Par une prévention active, concrète. En Tunisie, par exemple, il faut installer des caméras de vidéosurveillance, pratiquer des contrôles d’accès aux lieux publics. En France, il faut sécuriser les lieux par ce même genre de dispositifs. En revanche, je suis très réticent sur la présence de soldats en faction devant les lieux sensibles. Ils peuvent à leur tour devenir des cibles.
Les pouvoirs publics sont-ils conscients des risques qui, selon vous, nous guettent ?
Je ne le crois pas. Le fait de bombarder l’EI et de le dire publiquement peut pousser des individus à commettre des attentats en France. Mais surtout, on n’est pas assez conscients de la portée symbolique des dates et des lieux. Désormais, l’EI se considère comme un Etat, gère les territoires comme tel, avec un gouvernement, une administration et un agenda. Nous sommes bel et bien face à un Etat terroriste.
La Chine construit des îles artificielles pour revendiquer des zones maritimes
La République populaire entend asseoir son influence sur des ilôts inhabités mais stratégiques de la mer de Chine.
Une île artificielle en forme de porte-avion. La Chine est en train d’agglomérer des milliers de tonnes de terre sur un récif corallien afin de le transformer en piste d’atterrissage. L’objectif: asseoir sa domination sur une zone stratégique très disputée, la mer de Chine.
Jusqu’à présent, la majeure partie de l’île de Fiery Cross, ou Yongshu, en Chinois, se trouvait sous l’eau, à l’exception de quelques rochers et d’une surface de béton artificielle, servant à héberger une petite garnison de soldats. Des images satellites, analysées par des experts anglo-saxons de l’IHS, ont montré que depuis quelques mois, des navires chinois draguaient les fonds environnants. Les images ont également montré que ces derniers rassemblent les sédiments sur la barrière de corail, afin de faire émerger des eaux une piste de 3000 mètres de long sur 300 mètres, au plus, de large. Un port, à l’est de l’île, serait également en train d’être créé par les dragues chinoises. Il serait suffisamment grand pour «accueillir des pétroliers ou de grands navires de guerre», selon les experts de l’IHS.
Yongshu est située dans l’archipel des Spratleys, un territoire en plein milieu de la mer de Chine dont les récifs confettis, d’une superficie totale de 5 km2, sont répartis sur une zone de 410.000 km2. Quelques bouts de terre disputés entre le Brunei, la Malaisie, les Philippines, Taïwan et la Chine, dernière puissance à ne pas disposer de piste d’atterrissage dans les environs.
Une zone très stratégique
Dans un rapport, le ministère de la Défense français rappelle que les prétentions de Pékin sont fondées sur des arguments historiques: «La Chine prétend que des pêcheurs chinois fréquentent la mer de Chine du Sud depuis des époques aussi reculées que la période des Trois Royaumes (220-265).» Selon le rapport, il faut en réalité attendre les années 1980 pour qu’elle s’intéresse réellement à ces îles perdues. En 1987, la Chine en occupe 7. Cinq ans plus tard, elle revendique la totalité de l’archipel.
Si la Chine s’y intéresse autant, ce n’est pas en souvenir de quelques pêcheurs ancestraux. Cette zone, inconnue du grand public, est d’un intérêt géostratégique majeur. Elle est le point de passage entre l’Océan indien et l’Océan pacifique et permet la communication de l’Europe et de l’Asie orientale. Près d’un tiers du trafic maritime commercial du monde y passe, 90% de celui de la Chine. La Corée du Sud, le Japon et Taïwan y font transiter plus de la moitié de leurs ressources énergétiques. Si les éventuelles réserves de pétrole semblent pour le moment limitées, celles de gaz semblent au contraire très importantes: la zone pourrait comporter 13% des réserves mondiales, selon le rapport du ministère de la Défense.
Le précédent des Paracels
Outre l’évidente menace que représente la militarisation chinoise, la création de cette nouvelle terre vient asseoir la revendication de souveraineté chinoise: au regard du droit international, l’attribution d’une zone économique exclusive est déterminée par la possession d’un territoire côtier.
La Chine reproduit ici une tactique déjà éprouvée un peu plus au nord, dans l’archipel inhabité des Paracels, situé en face du Vietnam, qui revendique également ces territoires. Pékin y a créé une piste et un port. Dans les années 1970, un bref engagement entre la Chine et le Sud-Vietnam avait coûté la vie à 70 marins et envoyé par le fond trois navires vietnamiens. Seulement, après cet épisode, la présence chinoise avait été confortée dans l’archipel. En mai 2014, la Chine se servait de cette base territoriale pour justifier l’installation d’une plate-forme pétrolière dans les eaux des Paracels, entraînant une importante crise diplomatique avec le Vietnam.
Voir par ailleurs:
Memo to Supreme Court: State Marriage Laws Are Constitutional
Gene Schaerr and Ryan T. Anderson, Ph.D.
The Heritage Foundation
March 10, 2015
There is nothing in the U.S. Constitution that requires all 50 states to redefine marriage. The only way one can establish the unconstitutionality of man–woman marriage laws is to adopt a view of marriage that sees it as an essentially genderless, adult-centric institution and then declare that the Constitution requires that the states (re)define marriage in such a way. In other words, one needs to establish that the vision of marriage our law has long applied is wrong and that the Constitution requires a different vision. There is, however, no basis in the Constitution for reaching that conclusion. Marriage is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father, and states have constitutional authority to make marriage policy based on these truths.
Over the past year, four federal circuit courts—the Fourth, Seventh, Ninth, and Tenth Circuits—have ruled that the states and their people lack the ability under the federal Constitution to define marriage as it has always been defined: as the legal union of a man and a woman. In their breathtaking sweep, those four rulings are reminiscent of the U.S. Supreme Court’s now-discredited decision in Dred Scott v. Sandford, which likewise limited the people’s right to decide an issue of fundamental importance: whether their representatives in Congress had the constitutional authority to abolish slavery in the federal territories.
Last fall, the Supreme Court allowed those four circuit decisions to go into effect, thereby overriding the votes of tens of millions of citizens in many parts of the nation. Fortunately, however, the Court has now agreed to revisit the issue in the context of a decision issued by the Sixth Circuit, which reaffirmed the right of a state’s people to choose the traditional man–woman definition of marriage.
The overarching question before the Supreme Court in the four cases that were consolidated before the Sixth Circuit and for purposes of review by the Supreme Court—Obergefell v. Hodges, Tanco v. Haslam, DeBoer v. Snyder, and Bourke v. Beshear—is not whether an exclusively male–female marriage policy is the best, but only whether it is allowed by the U.S. Constitution. In other words, the question is not whether government-recognized same-sex marriage is good or bad policy, but only whether it is required by the U.S. Constitution.
To resolve that overarching question, the Supreme Court has directed the parties in those cases to address two precise questions:
Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state?
Those suing to overturn the marriage laws in the four states covered by the Sixth Circuit (Ohio, Kentucky, Michigan, and Tennessee) thus have to prove that the man–woman marriage policy that has existed in the United States throughout our entire history is prohibited by the U.S. Constitution.
The only way someone could succeed in such an argument is to adopt a view of marriage that sees it as an essentially genderless institution based only on the emotional needs of adults and then declare that the U.S. Constitution requires that the states (re)define marriage in such a way. Equal protection alone is not enough. To strike down marriage laws, the Court would need to say that the vision of marriage that our law has long applied equally is just wrong: that the Constitution requires a different vision entirely.
The U.S. Constitution, however, is silent on what marriage is and what policy goals the states should design it to serve, and there are good policy arguments on both sides. Judges should not insert their own policy preferences about marriage and declare them to be required by the U.S. Constitution any more than the Justices in Dred Scott should have written into the Constitution their own policy preferences in support of slavery.
That, of course, is not to suggest that same-sex marriage is itself comparable to slavery. The point is simply that, as in Dred Scott, this is a debate about whether citizens or judges will decide an important and sensitive policy issue—in this case, the very nature of civil marriage.
The Fourteenth Amendment’s Original Meaning
A legal challenge to these state marriage laws cannot appeal successfully to the text or original meaning of the Fourteenth Amendment. The text, invoking American citizens’ “privileges or immunities,” the “equal protection of the laws,” and the “due process of law,” nowhere mentions marriage. Back in the 1860s, could anyone who drafted that amendment or any of the citizens who voted to ratify it have reasonably thought that it could be used to invalidate state marriage laws defining marriage as a man–woman union?
Imagine, for example, how President Lincoln—an accomplished lawyer and an ardent opponent of Dred Scott—would have reacted if the amendment had been introduced before his death and someone had suggested that it might one day be interpreted to require states to recognize same-sex marriages. He would have viewed that suggestion as preposterous. There has never been any general right, he would have said, to marry anyone you claim to love, so a state’s rejection of that claimed “right” could not possibly be a denial of due process.
Lincoln would also have noted the similarities between Dred Scott and a decision imposing same-sex marriage. As distinguished law professor Michael Stokes Paulsen has elegantly argued, “in the structure and logic of the legal arguments made for judicial imposition of an across-the-board national rule requiring every state to accept the institutions [of slavery and the redefinition of marriage], the two situations appear remarkably similar.”
Moreover, unlike miscegenation laws, the man–woman definition of marriage does not offend the Amendment’s equal-protection guarantee because it allows any otherwise qualified man and woman to marry, regardless of their sexual orientation or other circumstances. The fact that the institution of marriage, rightly understood, may be more attractive to some of a state’s citizens than others does not mean that a state violates the Fourteenth Amendment simply by refusing to redefine the institution to make it more attractive to more romantic partnerships.
Indeed, as the Sixth Circuit pointed out, all sides agree that the original meaning of the Fourteenth Amendment does not require the redefinition of marriage: “Nobody…argues that the people who adopted the 14th Amendment understood it to require the States to change the definition of marriage.” The Sixth Circuit continued: “From the founding of the republic to 2003, every state defined marriage as a relationship between a man and a woman, meaning that the 14th Amendment permits, though it does not require, states to define marriage in that way.”
The opinion closes by noting that “not a single U.S. Supreme Court Justice in American history has written an opinion maintaining that the traditional definition of marriage violates the 14th Amendment.”
United States v. Windsor
Nor can a challenge reasonably appeal to the Supreme Court’s Windsor decision, which was written by Justice Anthony Kennedy and applied the Fourteenth Amendment’s protections in striking down a portion of the federal Defense of Marriage Act (DOMA). Whether it was right or wrong as to DOMA, Windsor strongly supports the authority of states to define marriage: Every single time that Windsor talks about the harm of DOMA, it mentions that the state had chosen to recognize the bond that the federal government was excluding. Every single time, Justice Kennedy expressly said it was Congress’s deviation from the default of deference to state definitions that drove his opinion.
Kennedy’s opinion for the Court hinged on the reality that “[t]he significance of state responsibilities for the definition and regulation of marriage dates to the Nation’s beginning.” “The definition of marriage,” Windsor explained, is “the foundation of the State’s broader authority to regulate the subject of domestic relations with respect to the ‘[p]rotection of offspring, property interests, and the enforcement of marital responsibilities.’”
United States District Judge Juan Pérez-Giménez recently highlighted this feature of Windsor:
The Windsor opinion did not create a fundamental right to same gender marriage nor did it establish that state opposite-gender marriage regulations are amenable to federal constitutional challenges. If anything, Windsor stands for the opposite proposition: it reaffirms the States’ authority over marriage, buttressing Baker’s conclusion that marriage is simply not a federal question.
Windsor also taught that federal power may not “put a thumb on the scales and influence a state’s decision as to how to shape its own marriage laws.” Yet since that time, the federal government—through federal judges—has repeatedly put its thumb on the scales to influence a state’s decision about its own marriage laws—all the while claiming that Windsor required them to do so.
Judge Pérez-Giménez bemoaned this reality, noting that “[i]t takes inexplicable contortions of the mind or perhaps even willful ignorance—this Court does not venture an answer here—to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.”
Fundamental Right Under the Fourteenth Amendment’s Due Process Clause
Just as neither the actual text nor the original meaning of the Fourteenth Amendment, nor the Windsor decision, requires the redefinition of state marriage laws, nothing in the Supreme Court’s Fourteenth Amendment jurisprudence requires states to abandon the male–female definition of marriage. Consider first the Court’s “fundamental rights” doctrine under the Due Process Clause, where, if the Court finds a law infringing upon a fundamental right, the law is subject to “strict scrutiny,” meaning that the government must provide a compelling interest in having the law and the law must be narrowly designed to promote that interest. Not surprisingly, laws almost always fail strict scrutiny.
Glucksberg. As the Supreme Court held in Glucksberg in rejecting a fundamental right to assisted suicide, fundamental rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty” such that “neither liberty nor justice would exist if they were sacrificed.”
Clearly, a right to marry someone of the same sex does not fit this description. As the Supreme Court explained in Windsor, including same-sex couples in marriage is “a new perspective, a new insight.” Same-sex marriage is not deeply rooted in the nation’s history and tradition; thus—whatever its policy merits—it cannot be a fundamental right under the Due Process Clause. Windsor correctly observed that “until recent years…marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.”
Whenever the Supreme Court has recognized marriage as a fundamental right, it has always been marriage understood as the union of a man and woman, and the rationale for the fundamental right has emphasized the procreative and social ordering aspects of male–female marriage. None of the cases that mention a fundamental right to marry deviate from this understanding, including decisions that struck down laws limiting marriage based on failure to pay child support, incarceration, and race. Those decisions took for granted the historic, common law, and statutory understanding of marriage as a male–female union having something to do with family life. Thus, a challenge to state male–female marriage laws cannot appeal successfully to the fundamental-rights doctrine under Glucksberg.
Loving. Comparisons to interracial marriage fare no better. As Fourth Circuit Judge Paul Niemeyer explained in his dissent in Bostic v. Schaefer, in Loving v. Virginia, where the Supreme Court found laws that prohibit interracial marriage to be unconstitutional, the couple was “asserting a right to enter into a traditional marriage of the type that has always been recognized since the beginning of the Nation—a union between one man and one woman.” He concluded:
Loving simply held that race, which is completely unrelated to the institution of marriage, could not be the basis of marital restrictions. To stretch Loving’s holding to say that the right to marry is not limited by gender…is to ignore the inextricable, biological link between marriage and procreation that the Supreme Court has always recognized.
In Loving, the Supreme Court defined marriage as one of the “‘basic civil rights of man,’ fundamental to our very existence and survival.” Professor John Eastman of Chapman Law School has helpfully explained why the Supreme Court did so:
Marriage is “fundamental to our very existence” only because it is rooted in the biological complementarity of the sexes, the formal recognition of the unique union through which children are produced—a point emphasized by the fact that the Supreme Court cited a case dealing with the right to procreate for its holding that marriage was a fundamental right.
Thus, a challenge to state male–female marriage laws cannot properly rely upon Loving.
Limiting Principle? To be sure, the Supreme Court has ruled that entering into and having the government recognize a marriage—understood as a union of husband and wife—is a fundamental right, but if this right is redefined to be understood simply as the committed, care-giving relationship of one’s choice, where does the logic lead? Justice Sonia Sotomayor asked this of Ted Olson, the lawyer for the same-sex couples, during oral argument in California’s Proposition 8 case, and he had no answer. If marriage is a fundamental right understood as consenting adult love, Justice Sotomayor asked, “what State restrictions could ever exist,” for example, “with respect to the number of people…that could get married?”
The Sixth Circuit saw Justice Sotomayor’s logic. With respect to those who would redefine marriage, the court observed that:
Their definition does too little because it fails to account for plural marriages, where there is no reason to think that three or four adults, whether gay, bisexual, or straight, lack the capacity to share love, affection, and commitment, or for that matter lack the capacity to be capable (and more plentiful) parents to boot.
The Sixth Circuit concluded that “if it is constitutionally irrational to stand by the man–woman definition of marriage, it must be constitutionally irrational to stand by the monogamous definition of marriage. Plaintiffs have no answer to the point.” Just so. And for that reason too, a challenge to state male–female marriage laws cannot properly invoke the Fourteenth Amendment’s Due Process Clause.
The Fourteenth Amendment’s Equal Protection Clause
Equal protection jurisprudence likewise does not require the redefinition of marriage.
Animus. Although a couple of Supreme Court decisions have relied upon the concept of “animus” in invalidating on equal-protection grounds state laws that impinged upon the interests of gays and lesbians, anyone with passing familiarity with the history of marriage knows that the institution did not arise because of animus toward gays and lesbians. Ancient thinkers as well as the political society in Greece and Rome, without being influenced by Judeo–Christian teaching, affirmed that marriage is a male–female union even as they embraced same-sex sexual relations.
Even in Windsor, Justice Kennedy did not claim that the man–woman definition of marriage was fueled by animus. Rather, as noted, he held that the federal government’s refusal to recognize state-sanctioned same-sex marriages was based on animus. One need not agree with Justice Kennedy on DOMA to see that the holding in Windsor does not undermine state marriage laws.
The Sixth Circuit acknowledged that same-sex couples have experienced unjust discrimination but noted that marriage laws are not part of that phenomenon:
But we also cannot deny that the institution of marriage arose independently of this record of discrimination. The traditional definition of marriage goes back thousands of years and spans almost every society in history. By contrast, “American laws targeting same-sex couples did not develop until the last third of the 20th century.” (citing Lawrence).
While Lawrence struck down laws that prohibited sex between persons of the same gender, it did not—and does not—require the redefinition of marriage. Laws that banned homosexual sodomy are radically different from laws that define marriage as the union of husband and wife. The Supreme Court found that the former infringed a privacy and liberty right, while the latter specify which unions will be eligible for public recognition and benefits. A right to liberty or privacy is a right to be left alone by the government, not a right to have the government recognize or subsidize the relationship of one’s choice.
Protected Class. Other advocates of same-sex marriage, including the Ninth Circuit, have argued that the denial of marriage to same-sex couples infringes the rights of a protected class: namely, gays and lesbians. But the Supreme Court, including in Windsor, has never held sexual orientation to be a suspect class and thus has not applied “heightened scrutiny” to laws implicating their interests. In contrast, the Court has held that race is a suspect class and gender a quasi-suspect class (which invokes heightened scrutiny but not quite strict scrutiny).
Even if the Supreme Court did find sexual orientation to be a suspect class, as liberal scholars like Andrew Koppelman have recognized, marriage laws do not discriminate on the basis of sexual orientation anyway. They have a disparate impact on gays, but that is not the Court’s test. The reason Koppelman believes—correctly—that they do not discriminate based on orientation is that they simply do not require checking someone’s orientation at all in determining whether that person will receive the benefits of civil marriage. Thus, under man–woman marriage laws, a gay man may marry a lesbian woman, while two heterosexual men cannot receive a marriage certificate from the state.
Nevertheless, if one were to argue that sexual orientation should be a protected class under equal protection jurisprudence, one would have to establish that sexual orientation creates a “class…[which] exhibit[s] obvious, immutable, or distinguishing characteristics that define them as a discrete group.” Gays and lesbians do not satisfy that requirement.
The American Psychological Association (APA) describes sexual orientation as a “range of behaviors and attractions” and reports that “[r]esearch over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex.” The APA also reports that “there is no consensus among scientists” on why particular orientations develop and that, despite extensive research, scientists cannot conclude whether sexual orientation is determined by “genetic, hormonal, developmental, social, [or] cultural influences.”
The APA, in short, says that no one can agree on the causes or even the definition of homosexuality, so it is not a readily identifiable group. These APA findings fatally undermine the idea that sexual orientation describes a “discrete group” for suspect-class purposes.
This point is confirmed by Dr. Paul McHugh, former chief of psychiatry at Johns Hopkins Hospital and former chairman of the psychiatry department at Hopkins medical school, and legal scholar Gerard Bradley:
“Sexual orientation” should not be recognized as a newly protected characteristic of individuals under federal law.… In contrast with other characteristics, it is neither discrete nor immutable. There is no scientific consensus on how to define sexual orientation, and the various definitions proposed by experts produce substantially different groups of people.
Nor is there any convincing evidence that sexual orientation is biologically determined; rather, research tends to show that for some persons and perhaps for a great many, “sexual orientation” is plastic and fluid; that is, it changes over time. What we do know with certainty about sexual orientation is that it is affective and behavioral—a matter of desire and/or behavior.
In a February 2015 interview, Justice Ruth Bader Ginsburg admitted as much. While asserting incorrectly that it would not be a major adjustment for the American public to accept same-sex marriage, she correctly observed that:
[Americans have] looked around, and we discovered it’s our next door neighbor, we’re very fond of them. Or it’s our child’s best friend. Or even our child. I think that as more and more people came out and said, “This is who I am,” and the rest of us recognized that they are one of us, that there—there was a familiarity with people that didn’t exist in the beginning when the race problem was on the burner, because we lived in segregated communities and it was truly a we/they kind of thing. But not so, I think, of the gay-rights movement.
A better argument why gays and lesbians are not discrete and insular minorities—not easily identifiable or clustered together apart from the rest of society—could not be offered.
Furthermore, to be a protected class under equal protection jurisprudence, a group must be “politically powerless in the sense that they have no ability to attract the attention of the lawmakers.” Yet, as Chief Justice John Roberts pointed out during oral arguments in Windsor, “political figures are falling over themselves” to support gay marriage. Indeed, support for same-sex marriage and for LGBT (lesbian, gay, bisexual, and transgender) non-discrimination laws has been embraced by the President of the United States and the Democratic Party—the largest political party in the nation.
In short, it is hard to say that gays and lesbians are politically powerless. It is therefore impossible for the Court to find that they are a suspect class.
Rational Basis: Social Function. One could also argue, as the Fourth, Seventh, and Tenth Circuits have held, that there is simply no rational basis for man–woman marriage laws, meaning either that there is no legitimate purpose in such laws or that the laws are not rationally related to a legitimate purpose. This argument fails completely as it ignores the universal historical record witnessing to the rational basis of man–woman marriage laws based on the social function that marriage plays.
From a policy perspective, marriage is about attaching a man and a woman to each other as husband and wife to be father and mother to any children their sexual union may produce. When a baby is born, there is always a mother nearby: That is a fact of biology. The policy question is whether a father will be close by and, if so, for how long. Marriage, rightly understood, increases the odds that a man will be committed to both the children that he helps to create and to the woman with whom he does so. The man–woman definition of marriage reinforces the idea—the social norm—that a man should be so committed.
The man–woman definition, moreover, is based on the anthropological truth that men and women are distinct and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children deserve a mother and a father. Even President Barack Obama admits that children deserve a mother and a father:
We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home, or become teenage parents themselves. And the foundations of our community are weaker because of it.
In short, fathers matter, and marriage helps to connect fathers to mothers and children. But you do not have to think this marriage policy is ideal to think it constitutionally permissible. Unless gays and lesbians are a suspect class, for an equal protection challenge to succeed, this simple analysis of the social function of marriage would have to be proved not just misguided, but positively irrational. Universal human experience, however, confirms the rationality of that policy.
Compelling Interest and Narrowly Tailored: Constitutional at Any Level of Scrutiny. Even if one (implausibly) granted that sexual orientation was a suspect class and that marriage laws thus had to be held to heightened scrutiny, man–woman marriage would still be constitutional. A strong marriage culture is a compelling interest because it affects virtually every other state interest, and defining marriage as the permanent and exclusive union of a husband and wife is a narrowly tailored means of allowing it to fulfill its social function.
As noted, there is no dispute that marriage plays a fundamental role in society by encouraging men and women to commit permanently and exclusively to each other and to take responsibility for their children. As the Sixth Circuit concluded, “[b]y creating a status (marriage) and by subsidizing it (e.g., with tax-filing privileges and deductions), the States create an incentive for two people who procreate together to stay together for purposes of rearing offspring.”
In addition to financial incentives, as ample social science confirms, this combination of state-sanctioned status and benefits also reinforces certain child-centered norms or expectations that form part of the social institution of marriage. Those norms—such as the value of gender-diverse parenting and of biological connections between children and the adults who raise them—independently encourage man–woman couples “to stay together for purposes of rearing offspring.” Given the importance of those norms to the welfare of the children of such couples, the state has a compelling interest in reinforcing and maintaining them.
Most of those norms, moreover, arise from and/or depend upon the man–woman understanding that has long been viewed as central to the social institution of marriage. For example, because only man–woman couples (as a class) have the ability to provide dual biological connections to the children they raise together, the state’s decision—implemented by the man–woman definition—to limit marital status and benefits to such couples reminds society of the value of those biological connections. It thereby gently encourages man–woman couples to rear their biological children together, and it does so without denigrating other arrangements—such as adoption or assisted reproductive technologies—that such couples might choose when, for whatever reason, they are unable to have biological children of their own.
Like other social norms traditionally associated with the man–woman definition of marriage, the biological connection norm will be diluted or destroyed if the man–woman definition (and associated social understanding) is abandoned in favor of a definition that allows marriage between “any two otherwise qualified persons”—which is what same-sex marriage requires. And just as those norms benefit the state and society, their dilution or destruction can be expected to harm the interests of the state and its citizens.
For example, over time, as fewer heterosexual parents embrace the biological connection norm, more of their children will be raised without a mother or a father. After all, it will be very difficult for the law to send a message that fathers and mothers are essential if it has redefined marriage to make fathers or mothers optional, and that in turn will mean more children of heterosexuals raised in poverty, doing poorly in school, experiencing psychological or emotional problems, having abortions, and committing crimes—all at significant cost to the state.
In short, law affects culture. Culture affects beliefs. Beliefs affect actions. The law teaches, and it will shape not just a handful of marriages, but the public understanding of what marriage is. Consider the impact of no-fault divorce laws, which are widely acknowledged to have disserved, on balance, the interests of the very children they were supposedly designed to help. By providing easy exits from marriage and its responsibilities, no-fault divorce helped to change the perception of marriage from a permanent institution designed for the needs of children to a temporary one designed for the desires of adults. Thus, not only was it technically much easier to leave one’s spouse, but it was psychologically much easier as well, and the percentage of children growing up with just one parent in the home skyrocketed, with all of the attendant negative consequences.
This analysis also explains why a state’s decision to retain the man–woman definition of marriage should not be seen as demeaning to gay and lesbian citizens or their children and why it satisfies any form of heightened scrutiny. In the early 2000s, in the face of state judicial decisions seeking to impose same-sex marriage under state law, the definitional choice a state faced was a binary one: Either preserve the man–woman definition and the benefits it provides to the children (and the state) or replace it with an “any two qualified persons” definition and risk losing those benefits.
There is no middle ground. A state’s choice to preserve the man–woman definition is thus narrowly tailored—indeed, it is perfectly tailored—to the state’s interests in preserving those benefits and in avoiding the enormous societal risks that accompany a genderless-marriage regime. Under a proper means–ends analysis, therefore, a state’s choice to preserve the man–woman definition passes muster under any constitutional standard.
Recognizing Same-Sex Marriages from Out of State
If the points made above succeed—on the rational basis of state marriage laws defining marriage as the union of husband and wife and the reasonableness of thinking that redefining marriage will undermine the public policy purpose of such marriage laws—then a state should not be required to recognize other state marriage laws that would undermine its own public policy.
This conclusion follows from Article IV of the Constitution, which requires that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.” This clause enabled the sovereign states to come together to form one union without everything having to be relitigated when parties moved to a new state, but the Full Faith and Credit Clause does not require a state to recognize the policies of another state when doing so would undermine that state’s own public policy. Full Faith and Credit “does not compel a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.”
Windsor points out that “[m]arriage laws vary in some respects from State to State,” such as “the required minimum age” and “the permissible degree of consanguinity.” If a state has good policy reasons for promoting marriage as the union of a man and a woman, then it does not have to accept out-of-state marriages that undermine its own policy preferences. A state may apply its own marriage laws in preference to an out-of-state policy that it judges would undermine its own policy, because “as a sovereign [it] has a rightful and legitimate concern in the marital status of persons domiciled within its borders.”
Moreover, given that the Full Faith and Credit Clause deals specifically with the recognition of official acts in other states, there is no sound basis for invoking the Fourteenth Amendment as a stand-alone basis for requiring a state to recognize a marriage performed in another state.
At the end of the day, there simply is nothing in the U.S. Constitution that requires all 50 states to redefine marriage. Part of the design of federalism is that experimentation can take place in the states: As the Sixth Circuit noted, “federalism…permits laboratories of experimentation—accent on the plural—allowing one State to innovate one way, another State another, and a third State to assess the trial and error over time.”
To a make a plausible case to the contrary, as we have seen, one cannot reasonably appeal to the authority of Windsor, to the text or original meaning of the Fourteenth Amendment, to the fundamental rights protected by the Due Process Clause, or to Loving v. Virginia. So, too, one cannot properly appeal to the Equal Protection Clause or to animus or Lawrence. Nor can one say that gays and lesbians are politically powerless, so one cannot claim they are a suspect class. Nor can one say that male–female marriage laws lack a rational basis or that they do not serve a compelling state interest in a narrowly tailored way.
The only way one can establish the unconstitutionality of man–woman marriage laws is to adopt a view of marriage that sees it as an essentially genderless, adult-centric institution and then declare that the Constitution requires that the states (re)define marriage in that way. In other words, one needs to establish that the vision of marriage our law has long applied is just wrong and that the Constitution requires a different vision entirely.
There is, however, no basis in the Constitution for reaching that conclusion any more than there was a basis in the Constitution for concluding—as Dred Scott did—that the people of the United States lacked the power to abolish slavery in their territories. Accordingly, any decision requiring states to redefine marriage is as much a usurpation of the people’s authority as Dred Scott was.
—Gene Schaerr is a Washington, D.C.-based attorney who specializes in constitutional and appellate litigation. He has previously served as Associate Counsel to the President and as law clerk to Justice Antonin Scalia and has handled dozens of cases (including six he personally argued) before the U.S. Supreme Court. Ryan T. Anderson, PhD, co-author of the book What Is Marriage? Man and Woman: A Defense, is William E. Simon Fellow in the Richard and Helen DeVos Center, of the Institute for Family, Community, and Opportunity, at The Heritage Foundation.
 Bostic v. Schaefer, 760 F.3d 352 (4th Cir. 2014); Baskin v. Bogan, 766 F.3d 648 (7th Cir. 2014); Latta v. Otter, 771 F.3d 456 (9th Cir. 2014); Kitchen v. Herbert, 755 F.3d 1193 (10th Cir. 2014); Bishop v. Smith, 760 F.3d 1070 (10th Cir. 2014).
 60 U.S. 393 (1857).
 For more on the legal parallel, see Michael Stokes Paulsen, Abraham Lincoln and Same-Sex Marriage, Public Discourse (Feb. 20, 2015), http://www.thepublicdiscourse.com/2015/02/14443/.
 DeBoer v. Snyder, 772 F.3d 388 (6th Cir. 2014), cert. granted, 83 U.S.L.W. 3315 (U.S. Jan. 16, 2015) (No. 14-571); see also Obergefell v. Hodges (No. 14-556); Tanco v. Haslam (No. 14-562); Bourke v. Beshear (No. 14-574).
 Paulsen, supra note 3.
 DeBoer, 772 F.3d at 403.
 Id. at 404.
 Id. at 416.
 United States v. Windsor, 570 U.S. ___, 133 S.Ct. 2675, 2692 (2013).
 Id. at 2691 (quoting Williams v. North Carolina, 317 U.S. 287, 298 (1942)).
 Conde-Vidal v. Garcia-Padilla (D.P.R.) (D.P.R. Oct. 21, 2014) (No. 14-1253), 2014 WL 5361987. See also Baker v. Nelson, 409 U.S. 810 (1972) (summarily dismissing “for want of a substantial federal question” an appeal that argued that Minnesota’s man–woman only marriage laws violated the Fourteenth Amendment).
 Windsor, 133 S.Ct. at 2693 (citations omitted).
 Conde-Vidal, 2014 WL 5361987 at 8*.
 Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Besides the right to marry (with marriage always understood as a union of husband and wife), examples of fundamental rights the Court has found are the right to procreate, the right to have sexual autonomy, the right to buy and use birth control and abortion, the right to travel freely among the states, the right to raise one’s children as one sees fit, the right to vote, and the right to the freedoms protected by the First Amendment (speech, religion, and association).
 Windsor, 133 S.Ct. at 2689.
 Zablocki v. Redhall, 434 U.S. 374, 385–87 (1987).
 Turner v. Safley, 482 U.S. 78, 95–98 (1987).
 Loving v. Virginia, 388 U.S. 1, 11 (1967).
 For an extended analysis, see Ryan T. Anderson, Marriage, Reason, and Religious Liberty: Much Ado About Sex, Nothing to Do with Race, Heritage Foundation Backgrounder No. 2894 (Apr. 4, 2014), available at http://www.heritage.org/research/reports/2014/04/marriage-reason-and-religious-liberty-much-ado-about-sex-nothing-to-do-with-race.
 Bostic, 760 F.3d at 390 (Niemeyer, J., dissenting).
 Id. at 392.
 Loving, 388 U.S. at 18.
 John Eastman, The Constitutionality of Traditional Marriage, Heritage Foundation Legal Memorandum No. 90 (Jan. 25, 2013), available at http://www.heritage.org/research/reports/2013/01/the-constitutionality-of-traditional-marriage.
 Transcript of Oral Argument at 46:25, 47:1–3, Hollingsworth v. Perry, 133 S.Ct. 2652 (2013) (No. 12-144) (2010).
 DeBoer, 772 F.3d at 407.
 See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003); Romer v. Evans, 517 U.S. 620 (1996).
 John Finnis, The Collected Essays of John Finnis: Volume III: Human Rights and Common Good 340 (Oxford Univ. Press, 2011).
 DeBoer, 772 F.3d at 413.
 Latta, 771 F.3d at 468.
 But see SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471 (9th Cir. 2014) (holding that sexual orientation was a suspect class triggering heightened scrutiny).
 The heightened scrutiny of gender classifications is often called “intermediate scrutiny” because it falls between the lower rational basis review and the higher strict scrutiny review.
 Andrew Koppelman, Response: Sexual Disorientation, 100 Geo. L.J. 1083, 1087 (2012).
 Bowen v. Gilliard, 483 U.S. 587, 603 (1987) (quoting Massachusetts B. of Retirement v. Murgia, 427 U.S. 307, 313–14 (1976)) (emphasis added).
 Answers to Your Questions: For a Better Understanding of Sexual Orientation & Homosexuality American Psychological Association (2008), http://www.apa.org/topics/lgbt/orientation.aspx?item=4.
 Paul McHugh & Gerard Bradley, Sexual Orientation, Gender Identity, and Employment Law, Public Discourse (July 25, 2013), http://www.thepublicdiscourse.com/2013/07/10636/.
 Interview by Greg Stohr and Matthew Winkler, Ginsburg: Doubt Gay Marriage Won’t Be Widely Accepted, Bloomberg (Feb. 12, 2015), http://www.bloomberg.com/news/videos/2015-02-12/ginsburg-doubt-gay-marriage-won-t-be-widely-accepted.
 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 445 (1985).
 Transcript of Oral Argument at 108:13–14, Windsor, 133 S.Ct. 2675 (2013) (No. 12-307).
 Election Trends by Group: Party Affiliation, Gallup, available at http://www.gallup.com/poll/15370/party-affiliation.aspx.
 When courts find animus against a group, then laws fail rational basis review, though it is a more searching standard of review and so is often referred to as “rational basis with bite.”
 Ryan T. Anderson, “Marriage: What It Is, Why It Matters, and the Consequences of Redefining It,” Heritage Foundation Backgrounder No. 2775 (Mar. 11, 2013), available at http://www.heritage.org/research/reports/2013/03/marriage-what-it-is-why-it-matters-and-the-consequences-of-redefining-it.
 President Barack Obama, Father’s Day Remarks, N.Y. Times, July 15, 2008, http://www.nytimes.com/2008/06/15/us/politics/15text-obama.html?pagewanted=print.
 DeBoer, 772 F.3d at 405.
 See Windsor, 133 S.Ct. at 2718.
 See Grutter v. Bollinger, 539 U.S. 982 (2003) (holding that affirmative action programs satisfied strict scrutiny and that the courts were required to defer to legislative facts found by decision-makers).
 U.S. Const. art. IV, § 1.
 See Erin O’Hara O’Connor, Full Faith and Credit Clause, in The Heritage Guide to the Constitution (2d ed.), available at http://www.heritage.org/constitution#!/articles/4/essays/121/full-faith-and-credit-clause.
 Baker v. Gen. Motors Corp., 522 U.S. 222, 232–33 (1998) (quotes omitted).
 Windsor, 133 S.Ct. at 2691–92.
 The Supreme Court has required “a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.” Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494–95 (2003) (quotes omitted).
 Williams, 317 U.S. at 298.
 DeBoer, 772 F.3d at 406.
Voir de plus:
Marriage: What It Is, Why It Matters, and the Consequences of Redefining It
Ryan T. Anderson, Ph.D.
The Heritage Foundation
March 11, 2013
Marriage is based on the truth that men and women are complementary, the biological fact that reproduction depends on a man and a woman, and the reality that children need a mother and a father. Redefining marriage does not simply expand the existing understanding of marriage; it rejects these truths. Marriage is society’s least restrictive means of ensuring the well-being of children. By encouraging the norms of marriage—monogamy, sexual exclusivity, and permanence—the state strengthens civil society and reduces its own role. The future of this country depends on the future of marriage. The future of marriage depends on citizens understanding what it is and why it matters and demanding that government policies support, not undermine, true marriage.
At the heart of the current debates about same-sex marriage are three crucial questions: What is marriage, why does marriage matter for public policy, and what would be the consequences of redefining marriage to exclude sexual complementarity?
Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces. It is based on the anthropological truth that men and women are different and complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children need both a mother and a father. Marriage predates government. It is the fundamental building block of all human civilization. Marriage has public purposes that transcend its private purposes. This is why 41 states, with good reason, affirm that marriage is between a man and a woman.
Government recognizes marriage because it is an institution that benefits society in a way that no other relationship does. Marriage is society’s least restrictive means of ensuring the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other and take responsibility for their children. While respecting everyone’s liberty, government rightly recognizes, protects, and promotes marriage as the ideal institution for childbearing and childrearing.
Promoting marriage does not ban any type of relationship: Adults are free to make choices about their relationships, and they do not need government sanction or license to do so. All Americans have the freedom to live as they choose, but no one has a right to redefine marriage for everyone else.
In recent decades, marriage has been weakened by a revisionist view that is more about adults’ desires than children’s needs. This reduces marriage to a system to approve emotional bonds or distribute legal privileges.
Redefining marriage to include same-sex relationships is the culmination of this revisionism, and it would leave emotional intensity as the only thing that sets marriage apart from other bonds. Redefining marriage would further distance marriage from the needs of children and would deny, as a matter of policy, the ideal that a child needs both a mom and a dad. Decades of social science, including the latest studies using large samples and robust research methods, show that children tend to do best when raised by a mother and a father. The confusion resulting from further delinking childbearing from marriage would force the state to intervene more often in family life and expand welfare programs. Redefining marriage would legislate a new principle that marriage is whatever emotional bond the government says it is.
Redefining marriage does not simply expand the existing understanding of marriage. It rejects the anthropological truth that marriage is based on the complementarity of man and woman, the biological fact that reproduction depends on a man and a woman, and the social reality that children need a mother and a father. Redefining marriage to abandon the norm of male–female sexual complementarity would also make other essential characteristics—such as monogamy, exclusivity, and permanency—optional. Marriage cannot do the work that society needs it to do if these norms are further weakened.
Redefining marriage is also a direct and demonstrable threat to religious freedom because it marginalizes those who affirm marriage as the union of a man and a woman. This is already evident in Massachusetts and Washington, D.C., among other locations.
Concern for the common good requires protecting and strengthening the marriage culture by promoting the truth about marriage.
What Is Marriage?
Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces.
At its most basic level, marriage is about attaching a man and a woman to each other as husband and wife to be father and mother to any children their sexual union produces. When a baby is born, there is always a mother nearby: That is a fact of reproductive biology. The question is whether a father will be involved in the life of that child and, if so, for how long. Marriage increases the odds that a man will be committed to both the children that he helps create and to the woman with whom he does so.
Marriage connects people and goods that otherwise tend to fragment. It helps to connect sex with love, men with women, sex with babies, and babies with moms and dads. Social, cultural, and legal signals and pressures can support or detract from the role of marriage in this regard.
Maggie Gallagher captures this insight with a pithy phrase: “[S]ex makes babies, society needs babies, and children need mothers and fathers.” Connecting sex, babies, and moms and dads is the social function of marriage and helps explain why the government rightly recognizes and addresses this aspect of our social lives. Gallagher develops this idea:
The critical public or “civil” task of marriage is to regulate sexual relationships between men and women in order to reduce the likelihood that children (and their mothers, and society) will face the burdens of fatherlessness, and increase the likelihood that there will be a next generation that will be raised by their mothers and fathers in one family, where both parents are committed to each other and to their children.
Marriage is based on the anthropological truth that men and women are complementary, the biological fact that reproduction depends on a man and a woman, and the social reality that children need a mother and a father.
Marriage is a uniquely comprehensive union. It involves a union of hearts and minds, but also—and distinctively—a bodily union made possible by sexual complementarity. As the act by which a husband and wife make marital love also makes new life, so marriage itself is inherently extended and enriched by family life and calls for all-encompassing commitment that is permanent and exclusive. In short, marriage unites a man and a woman holistically—emotionally and bodily, in acts of conjugal love and in the children such love brings forth—for the whole of life.
Just as the complementarity of a man and a woman is important for the type of union they can form, so too is it important for how they raise children. There is no such thing as “parenting.” There is mothering, and there is fathering, and children do best with both. While men and women are each capable of providing their children with a good upbringing, there are, on average, differences in the ways that mothers and fathers interact with their children and the functional roles that they play.
Dads play particularly important roles in the formation of both their sons and their daughters. As Rutgers University sociologist David Popenoe explains, “The burden of social science evidence supports the idea that gender-differentiated parenting is important for human development and that the contribution of fathers to childrearing is unique and irreplaceable.” Popenoe concludes:
We should disavow the notion that “mommies can make good daddies,” just as we should disavow the popular notion…that “daddies can make good mommies.”… The two sexes are different to the core, and each is necessary—culturally and biologically—for the optimal development of a human being.
Marriage as the union of man and woman is true across cultures, religions, and time. The government recognizes but does not create marriage.
Marriage is the fundamental building block of all human civilization. The government does not create marriage. Marriage is a natural institution that predates government. Society as a whole, not merely any given set of spouses, benefits from marriage. This is because marriage helps to channel procreative love into a stable institution that provides for the orderly bearing and rearing of the next generation.
This understanding of marriage as the union of man and woman is shared by the Jewish, Christian, and Muslim traditions; by ancient Greek and Roman thinkers untouched by these religions; and by various Enlightenment philosophers. It is affirmed by both common and civil law and by ancient Greek and Roman law. Far from having been intended to exclude same-sex relationships, marriage as the union of husband and wife arose in many places, over several centuries, in which same-sex marriage was nowhere on the radar. Indeed, it arose in cultures that had no concept of sexual orientation and in some that fully accepted homoeroticism and even took it for granted.
As with other public policy issues, religious voices on marriage should be welcomed in the public square. Yet one need not appeal to distinctively religious arguments to understand why marriage—as a natural institution—is the union of man and woman.
Marriage has been weakened by a revisionist view of marriage that is more about adults’ desires than children’s needs.
In recent decades, marriage has been weakened by a revisionist view of marriage that is more about adults’ desires than children’s needs. This view reduces marriage primarily to emotional bonds or legal privileges. Redefining marriage represents the culmination of this revisionism and would leave emotional intensity as the only thing that sets marriage apart from other bonds.
However, if marriage were just intense emotional regard, marital norms would make no sense as a principled matter. There is no reason of principle that requires an emotional union to be permanent. Or limited to two persons. Or sexual, much less sexually exclusive (as opposed to “open”). Or inherently oriented to family life and shaped by its demands. Couples might live out these norms where temperament or taste motivated them, but there would be no reason of principle for them to do so and no basis for the law to encourage them to do so.
In other words, if sexual complementarity is optional for marriage, present only where preferred, then almost every other norm that sets marriage apart is optional. Although some supporters of same-sex marriage would disagree, this point can be established by reason and, as documented below, is increasingly confirmed by the rhetoric and arguments used in the campaign to redefine marriage and by the policies that many of its leaders increasingly embrace.
Why Marriage Matters for Policy
Government recognizes marriage because it is an institution that benefits society in a way that no other relationship does.
Virtually every political community has regulated male–female sexual relationships. This is not because government cares about romance as such. Government recognizes male–female sexual relationships because these alone produce new human beings. For highly dependent infants, there is no path to physical, moral, and cultural maturity—no path to personal responsibility—without a long and delicate process of ongoing care and supervision to which mothers and fathers bring unique gifts. Unless children mature, they never will become healthy, upright, productive members of society. Marriage exists to make men and women responsible to each other and to any children that they might have.
Marriage is thus a personal relationship that serves a public purpose in a political community. As the late sociologist James Q. Wilson wrote, “Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.”
Marriage is society’s least restrictive means of ensuring the well-being of children. Marital breakdown weakens civil society and limited government.
Marriage is society’s least restrictive means of ensuring the well-being of children. Government recognition of marriage protects children by incentivizing men and women to commit to each other and take responsibility for their children.
Social science confirms the importance of marriage for children. According to the best available sociological evidence, children fare best on virtually every examined indicator when reared by their wedded biological parents. Studies that control for other factors, including poverty and even genetics, suggest that children reared in intact homes do best on educational achievement, emotional health, familial and sexual development, and delinquency and incarceration.
A study published by the left-leaning research institution Child Trends concluded:
[I]t is not simply the presence of two parents…but the presence of two biological parents that seems to support children’s development.
[R]esearch clearly demonstrates that family structure matters for children, and the family structure that helps children the most is a family headed by two biological parents in a low-conflict marriage. Children in single-parent families, children born to unmarried mothers, and children in stepfamilies or cohabiting relationships face higher risks of poor outcomes.… There is thus value for children in promoting strong, stable marriages between biological parents.
According to another study, “[t]he advantage of marriage appears to exist primarily when the child is the biological offspring of both parents.” Recent literature reviews conducted by the Brookings Institution, the Woodrow Wilson School of Public and International Affairs at Princeton University, the Center for Law and Social Policy, and the Institute for American Values corroborate the importance of intact households for children.
These statistics have penetrated American life to such a great extent that even President Barack Obama refers to them as well known:
We know the statistics—that children who grow up without a father are five times more likely to live in poverty and commit crime; nine times more likely to drop out of schools and twenty times more likely to end up in prison. They are more likely to have behavioral problems, or run away from home, or become teenage parents themselves. And the foundations of our community are weaker because of it.
Fathers matter, and marriage helps to connect fathers to mothers and children.
Social science claiming to show that there are “no differences” in outcomes for children raised in same-sex households does not change this reality. In fact, the most recent, sophisticated studies suggest that prior research is inadequate to support the assertion that it makes “no difference” whether a child was raised by same-sex parents. A survey of 59 of the most prominent studies often cited for this claim shows that they drew primarily from small convenience samples that are not appropriate for generalizations to the whole population.
Meanwhile, recent studies using rigorous methods and robust samples confirm that children do better when raised by a married mother and father. These include the New Family Structures Study by Professor Mark Regnerus at the University of Texas–Austin  and a report based on Census data recently released in the highly respected journal Demography.
Still, the social science on same-sex parenting is a matter of significant ongoing debate, and it should not dictate choices about marriage. Recent studies using robust methods suggest that there is a lot more to learn about how changing family forms affects children and that social science evidence offers an insufficient basis for redefining marriage.
Marital breakdown costs taxpayers.
Marriage benefits everyone because separating childbearing and childrearing from marriage burdens innocent bystanders: not just children, but the whole community. Often, the community must step in to provide (more or less directly) for their well-being and upbringing. Thus, by encouraging the marriage norms of monogamy, sexual exclusivity, and permanence, the state is strengthening civil society and reducing its own role.
By recognizing marriage, the government supports economic well-being. The benefits of marriage led Professor W. Bradford Wilcox to summarize a study he led as part of the University of Virginia’s National Marriage Project in this way: “The core message…is that the wealth of nations depends in no small part on the health of the family.” The same study suggests that marriage and fertility trends “play an underappreciated and important role in fostering long-term economic growth, the viability of the welfare state, the size and quality of the workforce, and the health of large sectors of the modern economy.”
Given its economic benefits, it is no surprise that the decline of marriage most hurts the least well-off. A leading indicator of whether someone will know poverty or prosperity is whether, growing up, he or she knew the love and security of having a married mother and father. For example, a recent Heritage Foundation report by Robert Rector points out: “Being raised in a married family reduced a child’s probability of living in poverty by about 82 percent.”
The erosion of marriage harms not only the immediate victims, but also society as a whole. A Brookings Institution study found that $229 billion in welfare expenditures between 1970 and 1996 can be attributed to the breakdown of the marriage culture and the resulting exacerbation of social ills: teen pregnancy, poverty, crime, drug abuse, and health problems. A 2008 study found that divorce and unwed childbearing cost taxpayers $112 billion each year, and Utah State University scholar David Schramm has estimated that divorce alone costs local, state, and federal-level government $33 billion each year.
Civil recognition of the marriage union of a man and a woman serves the ends of limited government more effectively, less intrusively, and at less cost than does picking up the pieces from a shattered marriage culture.
Government can treat people equally—and leave them free to live and love as they choose—without redefining marriage.
While respecting everyone’s liberty, government rightly recognizes, protects, and promotes marriage as the ideal institution for childbearing and childrearing. Adults are free to make choices about their relationships without redefining marriage and do not need government sanction or license to do so.
Government is not in the business of affirming our love. Rather, it leaves consenting adults free to live and love as they choose. Contrary to what some say, there is no ban on same-sex marriage. Nothing about it is illegal. In all 50 states, two people of the same sex may choose to live together, choose to join a religious community that blesses their relationship, and choose a workplace offering joint benefits. There is nothing illegal about this.
What is at issue is whether the government will recognize such relationships as marriages—and then force every citizen, house of worship, and business to do so as well. At issue is whether policy will coerce and compel others to recognize and affirm same-sex relationships as marriages. All Americans have the freedom to live as they choose, but they do not have the right to redefine marriage for everyone else.
Appeals to “marriage equality” are good sloganeering, but they exhibit sloppy reasoning. Every law makes distinctions. Equality before the law protects citizens from arbitrary distinctions, from laws that treat them differently for no good reason. To know whether a law makes the right distinctions—whether the lines it draws are justified—one has to know the public purpose of the law and the nature of the good being advanced or protected.
If the law recognized same-sex couples as spouses, would some argue that it fails to respect the equality of citizens in multiple-partner relationships? Are those inclined to such relationships being treated unjustly when their consensual romantic bonds go unrecognized, their children thereby “stigmatized” and their tax filings unprivileged?
This is not hypothetical. In 2009, Newsweek reported that there were over 500,000 polyamorous households in America. Prominent scholars and LGBT (lesbian, gay, bisexual, and transgender) activists have called for “marriage equality” for multipartner relationships since at least 2006.
If sexual complementarity is eliminated as an essential characteristic of marriage, then no principle limits civil marriage to monogamous couples.
Supporters of redefinition use the following analogy: Laws defining marriage as a union of a man and a woman are unjust—fail to treat people equally—exactly like laws that prevented interracial marriage. Yet such appeals beg the question of what is essential to marriage. They assume exactly what is in dispute: that gender is as irrelevant as race in state recognition of marriage. However, race has nothing to with marriage, and racist laws kept the races apart. Marriage has everything to do with men and women, husbands and wives, mothers and fathers and children, and that is why principle-based policy has defined marriage as the union of one man and one woman.
Marriage must be color-blind, but it cannot be gender-blind. The color of two people’s skin has nothing to do with what kind of marital bond they have. However, the sexual difference between a man and a woman is central to what marriage is. Men and women regardless of their race can unite in marriage, and children regardless of their race need moms and dads. To acknowledge such facts requires an understanding of what, at an essential level, makes a marriage.
We reap the civil society benefits of marriage only if policy gets marriage right.
The state has an interest in marriage and marital norms because they serve the public good by protecting child well-being, civil society, and limited government. Marriage laws work by embodying and promoting a true vision of marriage, which makes sense of those norms as a coherent whole. There is nothing magical about the word “marriage.” It is not just the legal title of marriage that encourages adherence to marital norms.
What does the work are the social reality of marriage and the intelligibility of its norms. These help to channel behavior. Law affects culture. Culture affects beliefs. Beliefs affect actions. The law teaches, and it will shape not just a handful of marriages, but the public understanding of what marriage is.
Government promotes marriage to make men and women responsible to each other and to any children they might have. Promoting marital norms serves these same ends. The norms of monogamy and sexual exclusivity encourage childbearing within a context that makes it most likely that children will be raised by their mother and father. These norms also help to ensure shared responsibility and commitment between spouses, provide sufficient attention from both a mother and a father to their children, and avoid the sexual and kinship jealousy that might otherwise be present.
The norm of permanency ensures that children will at least be cared for by their mother and father until they reach maturity. It also provides kinship structure for interaction across generations as elderly parents are cared for by their adult children and as grandparents help to care for their grandchildren without the complications of fragmented stepfamilies.
If the law taught a falsehood about marriage, it would make it harder for people to live out the norms of marriage because marital norms make no sense, as matters of principle, if marriage is just intense emotional feeling. No reason of principle requires an emotional union to be permanent or limited to two persons, much less sexually exclusive. Nor should it be inherently oriented to family life and shaped by its demands. This does not mean that a couple could not decide to live out these norms where temperament or taste so motivated them, just that there is no reason of principle to demand that they do so. Legally enshrining this alternate view of marriage would undermine the norms whose link to the common good is the basis for state recognition of marriage in the first place.
Insofar as society weakens the rational foundation for marriage norms, fewer people would live them out, and fewer people would reap the benefits of the marriage institution. This would affect not only spouses, but also the well-being of their children. The concern is not so much that a handful of gay or lesbian couples would be raising children, but that it would be very difficult for the law to send a message that fathers matter when it has redefined marriage to make fathers optional.
This highlights the link between the central questions in this debate: What is marriage, and why does the state promote it? It is not that the state should not achieve its basic purpose while obscuring what marriage is. Rather, it cannot. Only when policy gets the nature of marriage right can a political community reap the civil society benefits of recognizing it.
Finally, support for marriage between a man and a woman is no excuse for animus against those with same-sex attractions or for ignoring the needs of individuals who, for whatever reason, may never marry. They are no less worthy than others of concern and respect. Yet this same diligent concern for the common good requires protecting and strengthening the marriage culture by promoting the truth about marriage.
The Consequences of Redefining Marriage
Redefining marriage would further distance marriage from the needs of children and deny the importance of mothers and fathers.
Redefining marriage would further disconnect childbearing from marriage. That would hurt children, especially the most vulnerable. It would deny as a matter of policy the ideal that children need a mother and a father. Traditional marriage laws reinforce the idea that a married mother and father is the most appropriate environment for rearing children, as the best available social science suggests.
Recognizing same-sex relationships as marriages would legally abolish that ideal. It would deny the significance of both mothering and fathering to children: that boys and girls tend to benefit from fathers and mothers in different ways. Indeed, the law, public schools, and media would teach that mothers and fathers are fully interchangeable and that thinking otherwise is bigoted.
Redefining marriage would diminish the social pressures and incentives for husbands to remain with their wives and biological children and for men and women to marry before having children. Yet the resulting arrangements—parenting by single parents, divorced parents, remarried parents, cohabiting couples, and fragmented families of any kind—are demonstrably worse for children. Redefining marriage would destabilize marriage in ways that are known to hurt children.
Leading LGBT advocates admit that redefining marriage changes its meaning. E. J. Graff celebrates the fact that redefining marriage would change the “institution’s message” so that it would “ever after stand for sexual choice, for cutting the link between sex and diapers.” Enacting same-sex marriage, she argues, “does more than just fit; it announces that marriage has changed shape.” Andrew Sullivan says that marriage has become “primarily a way in which two adults affirm their emotional commitment to one another.”
Government exists to create the conditions under which individuals and freely formed communities can thrive. The most important free community—the one on which all others depend—is the marriage-based family. The conditions for its thriving include the accommodations and pressures that marriage law provides for couples to stay together. Redefining marriage would further erode marital norms, thrusting government further into leading roles for which it is poorly suited: parent and discipliner to the orphaned; provider to the neglected; and arbiter of disputes over custody, paternity, and visitation. As the family weakened, welfare programs and correctional bureaucracies would grow.
Redefining marriage would put into the law the new principle that marriage is whatever emotional bond the government says it is.
Redefining marriage does not simply expand the existing understanding of marriage. It rejects the truth that marriage is based on the complementarity of man and woman, the biological fact that reproduction depends on a man and a woman, and the social reality that children need a mother and a father.
Redefining marriage to include same-sex relationships is not ultimately about expanding the pool of people who are eligible to marry. Redefining marriage is about cementing a new idea of marriage in the law—an idea whose baleful effects conservatives have fought for years. The idea that romantic-emotional union is all that makes a marriage cannot explain or support the stabilizing norms that make marriage fitting for family life. It can only undermine those norms.
Indeed, that undermining already has begun. Disastrous policies such as “no-fault” divorce were also motivated by the idea that a marriage is made by romantic attachment and satisfaction—and comes undone when these fade. Same-sex marriage would require a more formal and final redefinition of marriage as simple romantic companionship, obliterating the meaning that the marriage movement had sought to restore to the institution.
Redefining marriage would weaken monogamy, exclusivity, and permanency—the norms through which marriage benefits society.
Government needs to get marriage policy right because it shapes the norms associated with this most fundamental relationship. Redefining marriage would abandon the norm of male–female sexual complementarity as an essential characteristic of marriage. Making that optional would also make other essential characteristics of marriage—such as monogamy, exclusivity, and permanency—optional. Weakening marital norms and severing the connection of marriage with responsible procreation are the admitted goals of many prominent advocates of redefining marriage.
The Norm of Monogamy. New York University Professor Judith Stacey has expressed hope that redefining marriage would give marriage “varied, creative, and adaptive contours,” leading some to “question the dyadic limitations of Western marriage and seek…small group marriages.” In their statement “Beyond Same-Sex Marriage,” more than 300 “LGBT and allied” scholars and advocates call for legally recognizing sexual relationships involving more than two partners.University of Calgary Professor Elizabeth Brake thinks that justice requires using legal recognition to “denormalize heterosexual monogamy as a way of life” and “rectif[y] past discrimination against homosexuals, bisexuals, polygamists, and care networks.” She supports “minimal marriage,” in which “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties, the type of relationship involved, and which rights and responsibilities to exchange with each.”
In 2009, Newsweek reported that the United States already had over 500,000 polyamorous households. The author concluded:
[P]erhaps the practice is more natural than we think: a response to the challenges of monogamous relationships, whose shortcomings…are clear. Everyone in a relationship wrestles at some point with an eternal question: can one person really satisfy every need? Polyamorists think the answer is obvious—and that it’s only a matter of time before the monogamous world sees there’s more than one way to live and love.
A 2012 article in New York Magazine introduced Americans to “throuple,” a new term akin to a “couple,” but with three people whose “throuplehood is more or less a permanent domestic arrangement. The three men work together, raise dogs together, sleep together, miss one another, collect art together, travel together, bring each other glasses of water, and, in general, exemplify a modern, adult relationship. Except that there are three of them.”
The Norm of Exclusivity. Andrew Sullivan, who has extolled the “spirituality” of “anonymous sex,” also thinks that the “openness” of same-sex unions could enhance the bonds of husbands and wives:Same-sex unions often incorporate the virtues of friendship more effectively than traditional marriages; and at times, among gay male relationships, the openness of the contract makes it more likely to survive than many heterosexual bonds.… [T]here is more likely to be greater understanding of the need for extramarital outlets between two men than between a man and a woman.… [S]omething of the gay relationship’s necessary honesty, its flexibility, and its equality could undoubtedly help strengthen and inform many heterosexual bonds.
“Openness” and “flexibility” are Sullivan’s euphemisms for sexual infidelity. Similarly, in a New York Times Magazine profile, gay activist Dan Savage encourages spouses to adopt “a more flexible attitude” about allowing each other to seek sex outside their marriage. The New York Times recently reported on a study finding that exclusivity was not the norm among gay partners: “‘With straight people, it’s called affairs or cheating,’ said Colleen Hoff, the study’s principal investigator, ‘but with gay people it does not have such negative connotations.’”
A piece in The Advocate candidly admits where the logic of redefining marriage to include same-sex relationships leads:
Anti-equality right-wingers have long insisted that allowing gays to marry will destroy the sanctity of “traditional marriage,” and, of course, the logical, liberal party-line response has long been “No, it won’t.” But what if—for once—the sanctimonious crazies are right? Could the gay male tradition of open relationships actually alter marriage as we know it? And would that be such a bad thing?
We often protest when homophobes insist that same sex marriage will change marriage for straight people too. But in some ways, they’re right.
Some advocates of redefining marriage embrace the goal of weakening the institution of marriage in these very terms. “[Former President George W.] Bush is correct,” says Victoria Brownworth, “when he states that allowing same-sex couples to marry will weaken the institution of marriage…. It most certainly will do so, and that will make marriage a far better concept than it previously has been.” Professor Ellen Willis celebrates the fact that “conferring the legitimacy of marriage on homosexual relations will introduce an implicit revolt against the institution into its very heart.”
Michelangelo Signorile urges same-sex couples to “demand the right to marry not as a way of adhering to society’s moral codes but rather to debunk a myth and radically alter an archaic institution.” Same-sex couples should “fight for same-sex marriage and its benefits and then, once granted, redefine the institution of marriage completely, because the most subversive action lesbians and gay men can undertake…is to transform the notion of ‘family’ entirely.”
It is no surprise that there is already evidence of this occurring. A federal judge in Utah allowed a legal challenge to anti-bigamy laws. A bill that would allow a child to have three legal parents passed both houses of the California state legislature in 2012 before it was vetoed by the governor, who claimed he wanted “to take more time to consider all of the implications of this change.” The impetus for the bill was a lesbian same-sex relationship in which one partner was impregnated by a man. The child possessed a biological mother and father, but the law recognized the biological mother and her same-sex spouse, a “presumed mother,” as the child’s parents.
Those who believe in monogamy and exclusivity—and the benefits that these bring to orderly procreation and child well-being—should take note.
Redefining marriage threatens religious liberty.
Redefining marriage marginalizes those with traditional views and leads to the erosion of religious liberty. The law and culture will seek to eradicate such views through economic, social, and legal pressure. If marriage is redefined, believing what virtually every human society once believed about marriage—a union of a man and woman ordered to procreation and family life—would be seen increasingly as a malicious prejudice to be driven to the margins of culture. The consequences for religious believers are becoming apparent.
The administrative state may require those who contract with the government, receive governmental monies, or work directly for the state to embrace and promote same-sex marriage even if it violates their religious beliefs. Nondiscrimination law may make even private actors with no legal or financial ties to the government—including businesses and religious organizations—liable to civil suits for refusing to treat same-sex relationships as marriages. Finally, private actors in a culture that is now hostile to traditional views of marriage may discipline, fire, or deny professional certification to those who express support for traditional marriage.
In fact, much of this is already occurring. Heritage Foundation Visiting Fellow Thomas Messner has documented multiple instances in which redefining marriage has already become a nightmare for religious liberty. If marriage is redefined to include same-sex relationships, then those who continue to believe the truth about marriage—that it is by nature a union of a man and a woman—would face three different types of threats to their liberty: the administrative state, nondiscrimination law, and private actors in a culture that is now hostile to traditional views.
After Massachusetts redefined marriage to include same-sex relationships, Catholic Charities of Boston was forced to discontinue its adoption services rather than place children with same-sex couples against its principles. Massachusetts public schools began teaching grade-school students about same-sex marriage, defending their decision because they are “committed to teaching about the world they live in, and in Massachusetts same-sex marriage is legal.” A Massachusetts appellate court ruled that parents have no right to exempt their children from these classes.
The New Mexico Human Rights Commission prosecuted a photographer for declining to photograph a same-sex “commitment ceremony.” Doctors in California were successfully sued for declining to perform an artificial insemination on a woman in a same-sex relationship. Owners of a bed and breakfast in Illinois who declined to rent their facility for a same-sex civil union ceremony and reception were sued for violating the state nondiscrimination law. A Georgia counselor was fired after she referred someone in a same-sex relationship to another counselor. In fact, the Becket Fund for Religious Liberty reports that “over 350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.”
The Catholic bishop of Springfield, Illinois, explains how a bill, which was offered in that state’s 2013 legislative session, to redefine marriage while claiming to protect religious liberty was unable to offer meaningful protections:
[It] would not stop the state from obligating the Knights of Columbus to make their halls available for same-sex “weddings.” It would not stop the state from requiring Catholic grade schools to hire teachers who are legally “married” to someone of the same sex. This bill would not protect Catholic hospitals, charities, or colleges, which exclude those so “married” from senior leadership positions…. This “religious freedom” law does nothing at all to protect the consciences of people in business, or who work for the government. We saw the harmful consequences of deceptive titles all too painfully last year when the so-called “Religious Freedom Protection and Civil Union Act” forced Catholic Charities out of foster care and adoption services in Illinois.
In fact, the lack of religious liberty protection seems to be a feature of such bills:
There is no possible way—none whatsoever—for those who believe that marriage is exclusively the union of husband and wife to avoid legal penalties and harsh discriminatory treatment if the bill becomes law. Why should we expect it be otherwise? After all, we would be people who, according to the thinking behind the bill, hold onto an “unfair” view of marriage. The state would have equated our view with bigotry—which it uses the law to marginalize in every way short of criminal punishment.
Georgetown University law professor Chai Feldblum, an appointee to the U.S. Equal Employment Opportunity Commission, argues that the push to redefine marriage trumps religious liberty concerns:
[F]or all my sympathy for the evangelical Christian couple who may wish to run a bed and breakfast from which they can exclude unmarried, straight couples and all gay couples, this is a point where I believe the “zero-sum” nature of the game inevitably comes into play. And, in making that decision in this zero-sum game, I am convinced society should come down on the side of protecting the liberty of LGBT people.
Indeed, for many supporters of redefining marriage, such infringements on religious liberty are not flaws but virtues of the movement.
The Future of Marriage
Long before the debate about same-sex marriage, there was a debate about marriage. It launched a “marriage movement” to explain why marriage was good both for the men and women who were faithful to its responsibilities and for the children they reared. Over the past decade, a new question emerged: What does society have to lose by redefining marriage to exclude sexual complementarity?
Many citizens are increasingly tempted to think that marriage is simply an intense emotional union, whatever sort of interpersonal relationship consenting adults, whether two or 10 in number, want it to be—sexual or platonic, sexually exclusive or open, temporary or permanent. This leaves marriage with no essential features, no fixed core as a social reality. It is simply whatever consenting adults want it to be.
Yet if marriage has no form and serves no social purpose, how will society protect the needs of children—the prime victim of our non-marital sexual culture—without government growing more intrusive and more expensive?
Marriage exists to bring a man and a woman together as husband and wife to be father and mother to any children their union produces. Marriage benefits everyone because separating the bearing and rearing of children from marriage burdens innocent bystanders: not just children, but the whole community. Without healthy marriages, the community often must step in to provide (more or less directly) for their well-being and upbringing. Thus, by encouraging the norms of marriage—monogamy, sexual exclusivity, and permanence—the state strengthens civil society and reduces its own role.
Government recognizes traditional marriage because it benefits society in a way that no other relationship or institution does. Marriage is society’s least restrictive means of ensuring the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other and take responsibility for their children.
Promoting marriage does not ban any type of relationship: Adults are free to make choices about their relationships, and they do not need government sanction or license to do so. All Americans have the freedom to live as they choose, but no one has a right to redefine marriage for everyone else.
The future of this country depends on the future of marriage, and the future of marriage depends on citizens understanding what it is and why it matters and demanding that government policies support, not undermine, true marriage.
Some might appeal to historical inevitability as a reason to avoid answering the question of what marriage is—as if it were an already moot question. However, changes in public opinion are driven by human choice, not by blind historical forces. The question is not what will happen, but what we should do.
—Ryan T. Anderson is William E. Simon Fellow in Religion and a Free Society in the Richard and Helen DeVos Center for Religion and Civil Society at The Heritage Foundation.
 John Corvino and Maggie Gallagher, Debating Same-Sex Marriage (Oxford, U.K.: Oxford University Press, 2012), p. 94.
 Ibid., p. 116.
 Ibid., p. 96.
 Sherif Girgis, Ryan T. Anderson, and Robert P. George, What Is Marriage? Man and Woman: A Defense (New York: Encounter Books, 2012).
 David Popenoe, Life Without Father: Compelling New Evidence That Fatherhood and Marriage Are Indispensable for the Good of Children and Society (New York: The Free Press, 1996), p. 146.
 Ibid., p. 197. See also W. Bradford Wilcox, “Reconcilable Differences: What Social Sciences Show About the Complementarity of the Sexes & Parenting,” Touchstone, November 2005, p. 36.
 Girgis et al., What Is Marriage? Man and Woman: A Defense.
 James Q. Wilson, The Marriage Problem (New York: HapperCollins Publishers, 2002), p. 41.
 For the relevant studies, see Witherspoon Institute, “Marriage and the Public Good: Ten Principles,” August 2008, pp. 9–19, http://www.winst.org/family_marriage_and_democracy/WI_Marriage.pdf (accessed March 4, 2013). “Marriage and the Public Good,” signed by some 70 scholars, corroborates the philosophical case for marriage with extensive evidence from the social sciences about the welfare of children and adults.
 Kristin Anderson Moore, Susan M. Jekielek, and Carol Emig, “Marriage from a Child’s Perspective: How Does Family Structure Affect Children, and What Can We Do About It?” Child Trends Research Brief, June 2002, p. 1, http://www.childtrends.org/files/MarriageRB602.pdf (accessed March 4, 2013) (original emphasis).
 Ibid., p. 6.
 Wendy D. Manning and Kathleen A. Lamb, “Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families,” Journal of Marriage and Family, Vol. 65, No. 4 (November 2003), pp. 876 and 890.
 See Sara McLanahan, Elisabeth Donahue, and Ron Haskins, “Introducing the Issue,” Marriage and Child Wellbeing, Vol. 15, No. 2 (Fall 2005), http://futureofchildren.org/futureofchildren/publications/journals/article/index.xml?journalid=37&articleid=103 (accessed March 4, 2013); Mary Parke, “Are Married Parents Really Better for Children?” Center for Law and Social Policy Policy Brief, May 2003, http://www.clasp.org/admin/site/publications_states/files/0086.pdf (accessed March 4, 2013); and W. Bradford Wilcox et al., Why Marriage Matters: Twenty-Six Conclusions from the Social Sciences, 2nd ed. (New York: Institute for American Values, 2005), p. 6, http://americanvalues.org/pdfs/why_marriage_matters2.pdf (accessed March 4, 2013).
 Barack Obama, “Obama’s Speech on Fatherhood,” Apostolic Church of God, Chicago, June 15, 2008, http://www.realclearpolitics.com/articles/2008/06/obamas_speech_on_fatherhood.html (accessed March 4, 2013).
 See Jason Richwine and Jennifer A. Marshall, “The Regnerus Study: Social Science and New Family Structures Met with Intolerance,” Heritage Foundation Backgrounder No. 2726, October 2, 2012, http://www.heritage.org/research/reports/2012/10/the-regnerus-study-social-science-on-new-family-structures-met-with-intolerance.
 Loren Marks, “Same-Sex Parenting and Children’s Outcomes: A Closer Examination of the American Psychological Association’s Brief on Lesbian and Gay Parenting,” Social Science Research, Vol. 41, No. 4 (July 2012), http://www.sciencedirect.com/science/article/pii/S0049089X12000580 (accessed March 4, 2013).
 See Children from Different Families, http://www.familystructurestudies.com/ (accessed March 4, 2013).
 Douglas W. Allen, Catherine Pakaluk, and Joseph Price, “Nontraditional Families and Childhood Progress Through School: A Comment on Rosenfeld,” Demography, November 2012.
 Social Trends Institute, “The Sustainable Demographic Dividend: What Do Marriage and Fertility Have to Do with the Economy?” 2011, http://sustaindemographicdividend.org/articles/the-sustainable-demographic (accessed March 4, 2013).
 H. Brevy Cannon, “New Report: Falling Birth, Marriage Rates Linked to Global Economic Slowdown,” UVA Today, October 3, 2011, http://www.virginia.edu/uvatoday/newsRelease.php?id=16244 (accessed March 4, 2013).
 Robert Rector, “Marriage: America’s Greatest Weapon Against Child Poverty,” Heritage Foundation Special Report No. 117, September 5, 2012, http://www.heritage.org/research/reports/2012/09/marriage-americas-greatest-weapon-against-child-poverty.
 Isabel V. Sawhill, “Families at Risk,” in Henry J. Aaron and Robert D. Reischauer, eds., Setting National Priorities: The 2000 Election and Beyond (Washington: Brookings Institution Press, 1999), pp. 97 and 108. See also Witherspoon Institute, “Marriage and the Public Good,” p. 15.
 Institute for American Values et al., “The Taxpayer Costs of Divorce and Unwed Childbearing: First-Ever Estimates for the Nation and for All Fifty States,” 2008, http://www.americanvalues.org/pdfs/COFF.pdf (accessed March 6, 2013).
 David G. Schramm, “Preliminary Estimates of the Economic Consequences of Divorce,” Utah State University, 2003.
 Jessica Bennett, “Only You. And You. And You,” Newsweek, July 28, 2009, http://www.thedailybeast.com/newsweek/2009/07/28/only-you-and-you-and-you.html (accessed March 6, 2013).
 Ryan T. Anderson, “Beyond Gay Marriage,” The Weekly Standard, August 17, 2008, http://www.weeklystandard.com/Content/Public/Articles/000/000/012/591cxhia.asp (accessed March 6, 2013).
 For the relevant studies, see Witherspoon Institute, “Marriage and the Public Good.” See also Moore et al., “Marriage from a Child’s Perspective,” p. 1; Manning and Lamb, “Adolescent Well-Being in Cohabiting, Married, and Single-Parent Families”; McLanahan et al., “Introducing the Issue”; Parke, “Are Married Parents Really Better for Children?”; and Wilcox et al., Why Marriage Matters, p. 6.
 E. J. Graff, “Retying the Knot,” in Andrew Sullivan, ed., Same-Sex Marriage: Pro and Con: A Reader (New York: Vintage Books, 1997), pp. 134, 136, and 137.
 Andrew Sullivan, “Introduction,” in Sullivan, ed., Same-Sex Marriage, pp. xvii and xix.
 See Girgis et al., What Is Marriage?
 See Maggie Gallagher, “(How) Will Gay Marriage Weaken Marriage as a Social Institution: A Reply to Andrew Koppelman,” University of St. Thomas Law Journal, Vol. 2, No. 1 (2004), p. 62, http://ir.stthomas.edu/cgi/viewcontent.cgi?article=1047&context=ustlj (accessed March 6, 2013).
 BeyondMarriage.org, “Beyond Same-Sex Marriage: A New Strategic Vision for All Our Families and Relationships,” July 26, 2006, http://beyondmarriage.org/full_statement.html (accessed March 6, 2013).
 Elizabeth Brake, “Minimal Marriage: What Political Liberalism Implies for Marriage Law,” Ethics, Vol. 120, No. 2 (January 2010), pp. 302, 303, 323, and 336.
 Bennett, “Only You.”
 Molly Young, “He & He & He,” New York Magazine, July 29, 2012, http://nymag.com/news/features/sex/2012/benny-morecock-throuple/ (accessed March 6, 2013).
 Andrew Sullivan, Virtually Normal: An Argument About Homosexuality (New York: Vintage Books, 1996), pp. 202–203.
 Scott James, “Many Successful Gay Marriages Share an Open Secret,” The New York Times, January 28, 2010, http://www.nytimes.com/2010/01/29/us/29sfmetro.html (accessed March 6, 2013).
 Ari Karpel, “Monogamish,” The Advocate, July 7, 2011, http://www.advocate.com/Print_Issue/Features/Monogamish/ (accessed March 6, 2013).
 Ari Karpel, “Features: Monogamish,” The Advocate, July 7, 2011, http://www.advocate.com/arts-entertainment/features?page=7 (accessed March 7, 2013).
 Victoria A. Brownworth, “Something Borrowed, Something Blue: Is Marriage Right for Queers?” in Greg Wharton and Ian Philips, eds., I Do/I Don’t: Queers on Marriage (San Francisco: Suspect Thoughts Press, 2004), pp. 53 and 58–59.
 Ellen Willis, “Can Marriage Be Saved? A Forum,” The Nation, July 5, 2004, p. 16, http://www.highbeam.com/doc/1G1-118670288.html (accessed March 6, 2013).
 Michelangelo Signorile, “Bridal Wave,” Out, December 1993/January 1994, pp. 68 and 161.
 Julia Zebley, “Utah Polygamy Law Challenged in Federal Lawsuit,” Jurist, July 13, 2011, http://jurist.org/paperchase/2011/07/utah-polygamy-law-challenged-in-federal-lawsuit.php (accessed March 6, 2013).
 Jim Sanders, “Jerry Brown Vetoes Bill Allowing More Than Two Parents,” The Sacramento Bee, September 30, 2012, http://blogs.sacbee.com/capitolalertlatest/2012/09/jerry-brown-vetoes-bill-allowing-more-than-two-parents.html (accessed March 6, 2013).
 For more on this, see Jennifer Roback Morse, “Why California’s Three-Parent Law Was Inevitable,” Witherspoon Institute Public Discourse, September 10, 2012, http://www.thepublicdiscourse.com/2012/09/6197 (accessed March 6, 2013).
 Thomas M. Messner, “Same-Sex Marriage and the Threat to Religious Liberty,” Heritage Foundation Backgrounder No. 2201, October 30, 2008, http://www.heritage.org/research/reports/2008/10/same-sex-marriage-and-the-threat-to-religious-liberty; “Same-Sex Marriage and Threats to Religious Freedom: How Nondiscrimination Laws Factor In,” Heritage Foundation Backgrounder No. 2589, July 29, 2011, http://www.heritage.org/research/reports/2011/07/same-sex-marriage-and-threats-to-religious-freedom-how-nondiscrimination-laws-factor-in; and “From Culture Wars to Conscience Wars: Emerging Threats to Conscience,” Heritage Foundation Backgrounder No. 2532, April 13, 2011, http://www.heritage.org/research/reports/2011/04/from-culture-wars-to-conscience-wars-emerging-threats-to-conscience.
 For more on this, see Messner, “Same-Sex Marriage and the Threat to Religious Liberty.”
 Maggie Gallagher, “Banned in Boston,” The Weekly Standard, May 5, 2006, p. 20, http://www.weeklystandard.com/Content/Public/Articles/000/000/012/191kgwgh.asp (accessed March 6, 2013).
 For example, see Parker v. Hurley, 514 F.3d 87 (1st Cir. 2008).
 Walden v. Centers for Disease Control, Case No. 1:08-cv-02278-JEC, U.S. District Court, Northern District of Georgia, March 18, 2010, http://www.telladf.org/UserDocs/WaldenSJorder.pdf (accessed March 6, 2013).
 Becket Fund for Religious Liberty, “Same-Sex Marriage and State Anti-Discrimination Laws,” Issue Brief, January 2009, p. 2, http://www.becketfund.org/wp-content/uploads/2011/04/Same-Sex-Marriage-and-State-Anti-Discrimination-Laws-with-Appendices.pdf (accessed March 7, 2013). See also Messner, “Same-Sex Marriage and Threats to Religious Freedom,” p. 4.
 Thomas John Paprocki, letter to priests, deacons, and pastoral facilitators in the Diocese of Springfield, January 3, 2013, http://www.dio.org/blog/item/326-bishop-paprockis-letter-on-same-sex-marriage.html#sthash.CPXLw6Gt.dpbs (accessed March 6, 2013).
 Chai R. Feldblum, “Moral Conflict and Liberty: Gay Rights and Religion,” Brooklyn Law Review, Vol. 72, No. 1 (Fall 2006), p. 119, http://www.brooklaw.edu/~/media/PDF/LawJournals/BLR_PDF/blr_v72i.ashx (accessed March 6, 2013).