Obergefell may go the way of Bowers, but these things take time

A 5-4 ruling by the Supreme Court is enforceable law, so for the foreseeable future, every state in the United States will be issuing marriage licenses to same sex couples, including two men, and two women. The sky is not going to fall, millions of marriages of a man to a woman each year will not be impeded or tainted. If God is really angry, he is speaking with a still, small voice, not through a fire or a storm or an earthquake.

But Justice Kennedy's high-blown speculative verbal legerdemain is just as weak and begging for criticism, appearing as The Opinion of the Court, as it would be in the event Kennedy had been writing a dissent. The damage to constitutional jurisprudence has been significant. The First Amendment still protects our right to publicly detail what is wrong with the decision. Kennedy himself observed "The law doesn't belong to a bunch of judges and lawyers, it belongs to you."

Fundamentally, the entire line of cases from Goodridge to Obergefell suffers a consistent deformity. Once this string is pulled, the entire fabric comes undone. The courts have failed to answer the basic question, what is this "marriage" thingy that gays claim to have been denied?

No man, and no woman, has been denied access to marry a person of the opposite sex. If that IS what marriage IS -- the union of a man and a woman -- then the claim that same-sex couples have a "right" to a marriage license becomes an oxymoron. Attempts have been made to "construe" marriage as something other than what is on the statute books, particularly in the Goodridge decision: "We construe civil marriage to mean the voluntary union of two persons as spouses, to the exclusion of all others." Really? Why? What for? This, standing alone, robs marriage of any substance or meaning at all. But only by doing so have the courts been able to construe that a distinct set of persons have been "denied" the "benefits" of "marriage."

A significant difference between advocating the civil rights of racially distinct demographics -- whether a racial minority, as in the U.S., or a racial majority, as in the old Republic of South Africa -- is that "black" human beings were categorized AS black to deny them rights enjoyed by all other citizens, but "gay" human beings have had to assemble themselves AS a distinct demographic in order to make a colorable claim that they have been discriminated against. Racial laws contemplated that race meant something, and deliberately singled people out by race. Marriage laws, on the other hand, do not exclude those human beings defined as "gay" from marriage. Rather, people who presented themselves AS gay made the claim that they have been denied access to marriage, because what the law recognizes as marriage is something they personally find to be icky and unrewarding.

Discrimination on the basis of sex is, in general, invidious, because we now know that women make perfectly competent attorneys, doctors, engineers, senators, or whatever else. However, there is no aspect of human life in which discrimination on the basis of sex is so relevant as... sex. There is nothing so different about men and women as their sexuality, and therefore, there is nothing so rational as discrimination on the basis of sex when it comes to marriage. This doesn't mean that either sex is entitled to be top dog -- just that it makes perfect sense that a man who marries would marry a woman, and a woman who marries would marry a man. Two men might be business partners, or fishing buddies, or two women, or one of each -- it wouldn't really matter. But marriage has always been about the specific ways that men and women are distinct and different.

The species homo sapiens sapiens, like every species more complex than a sponge, is heteronormative. Indeed, sexual hormones and attraction only exists because two sexes with distinct and different roles in reproduction is a great evolutionary strategy, providing more flexibility in trying out different gene combinations, and facilitating more rapid adaptations to changing conditions. Whether homosexuality is an abomination before the Lord is of no concern to the civil law. What is a valid concern for the civil law is that homosexuality is, for the species, an irrelevant statistical outlier, that the law need not take notice of.

Human society may well have moved beyond evolution, so well do we control our own environment and suppress the many pathogens and natural conditions that would ruthlessly sort out the better survival characteristics from the the weaker ones. We value each individual as an individual. For those who happen to have a biochemistry focused on individuals of their own sex, this is the only life they have to live, and there is no reason to make it difficult for them. But there is no reason to call a "marriage" that which patently is not a marriage. The relevant categories, when it comes to marriage, are men, and women, not heterosexuals and homosexuals.

When the Supreme Court ruled in Bowers v. Hardwick that state laws imposing criminal penalties for private consensual homosexual contact were perfectly constitutional, they court strayed from its own line of precedents and made a grievous error. Those who believed the court was wrong did not collapse and say "The court has ruled, this is the law, we shall never say otherwise again." Rather, they went to work, studying applicable precedents, monitoring other decisions that might point the way to a reconsideration, looking at factual situations that might provide the basis for another case. Eventually, such a case was accepted by the court, and Lawrence v. Texas made the finding that no, such state laws violated the constitutional right to privacy.

Those dissatisfied with Obergefell would be perfectly correct to take the same approach. Change will not come quickly. Seventeen years passed between Bowers and Lawrence. Sixty years elapsed between Plessy v. Ferguson and Brown v. Board of Education. There are many variables, but this is a time for careful examination, not for supine depression or angry impotent expostulation. History is not linear, it meanders, swirls, eddies, and unfolds. Forward, but perhaps not in a straight line, is the way to go.

The exercise of personal choice under the compulsion of losing your job...

My good friend Gary Fouse out in Orange County, California, has asked me to acknowledge the negative impact of unions. He likes to focus on thuggery, which in my opinion is a bit misplaced. But a more mundane problem is that traditional union work rules can indeed deny individual workers flexibility they really would prefer to have, and also interfere with legitimate managerial initiatives.

There is a reason for traditional union work rules. About two hundred years ago, production which had been performed by independent crafts men (they were almost all men) was taken over by the rise of large industrial enterprises. The new methods produced far more, with less labor per item, making all kinds of goods available at a lower cost. In the long run, it contributed to general prosperity. Sort of.

Both the craftsmen newly rendered into wage laborers, and the gentlemen investors inventing the role of employers of large scale wage labor teams, looked to existing law and social custom to define their roles. Craftsmen demanded autonomy, and respect for their craft. Employers, who thought of themselves as MASTERS, tried to treat their employees as dependents and inferiors, albeit sometimes with a certain paternal noblesse oblige.

When adult citizens need to "get a job" to support themselves and their families, while a smaller number of adult citizens possess the wealth to invest capital, and the power to hire and fire, equal citizenship ceases to exist. When discretion is left up to owners and managers, it can and will be abused. Even seemingly reasonable decisions will be made according to the best interests of management, ignoring the best interests, or even the necessities, of employees.

A good example: a mother whose child is sick must take them to the hospital or the doctor. But, an employer who needs employees to be at work, on time, every day, simply cannot accommodate that, or won't. The operator of a pumpkin farm entertaining tours of school children might tell the secretary to go home until her child is well, and cover the post. The manager of a transport company might callously issue a final written warning.

Standardized union work rules define a baseline of rights that an employee is entitled to. Seniority isn't a great way to promote, but if "merit" or "talent" are the basis of promotion, the boss will decide what they want to recognize at "merit." It may be the brown-noser who gets the raise, or keeps their job during a lay-off, or the female employee who is willing to put out. To this day, in most states, absent specific legislation or union contract, a wage employee can be fired "for any reason or no reason." It's called "employment at will."

But if a way could be found to limit arbitrary and capricious action by management, while also allowing flexibility to both worker and owner, it could be a big improvement. Unfortunately, anything left up to the "choice" of a woman or man who "needs a job" can be quickly turned into "voluntarily agree to this, or we will not hire / will fire you."