Only homophobes could hate the outcome of Obergefell v Hodges:
It is now clear that the challenged laws burden the liberty of same-sex couples, and it must be further acknowledged that they abridge central precepts of equality. Here the marriage laws enforced by the respondents are in essence unequal: same-sex couples are denied all the benefits afforded to opposite-sex couples and are barred from exercising a fundamental right. Especially against a long history of disapproval of their relationships, this denial to same-sex couples of the right to marry works a grave and continuing harm. The imposition of this disability on gays and lesbians serves to disrespect and subordinate them. And the Equal Protection Clause, like the Due Process Clause, prohibits this unjustified infringement of the fundamental right to marry.
But can we like the outcome but hate the process?
This is the problem with the way we frame our public debates. To achieve balance, to create controversy, to demonstrate the freedom of the freest free speech, we hear from a voice on one ‘side’ of the debate and a voice on the ‘other’. So, naturally, the media reaction to Obergefell v Hodges is to find a gay couple who are finally getting married, ask them if they think ‘love finds a way’, and then paste in some quotes by a ferocious homophobe about the nature of heterosexual homophobia.
Australia’s discussion about marriage equality would have progressed significantly if we just excluded the homophobes. Just like the sign at the rollercoaster that says ‘You have to be this tall to ride’, we need reputable news outlets to insist that contributors meet a minimum threshold of decorum. Homophobia, racism, sexism, and all the other social evils that we’re trying to stamp out have no place in the mainstream press. Arguing against marriage equality on the basis that homosexuals should have fewer rights than heterosexuals is homophobia. Pure and simple.
But this has distracted us from a real problem with Obergefell v Hodges. The decision reflects a serious failure of liberal democratic theory. In the end, to achieve marriage equality, we needed an unaccountable group of lords to step in. The people simply could not govern themselves, an undemocratic authority needed to fix things.
Ultimately, people give precisely zero shits about how we’re governed. Debates about parliamentary sovereignty, rule of law, separation of powers, &c., &c., &c. — all the meaningless slogans — are fundamentally subordinate to whether or not people got the outcome they wanted. Marriage equality by hook or by crook.
Which brings me, as it usually does, to plain packaging legislation. Imagine that Obergefell v Hodges wasn’t about marriage equality but was instead about a piece of legislation that restricted tobacco companies. The legislation was crafty and somehow avoided being a first amendment right issue, and SCOTUS found some crafty bit of jurisprudence to find that the legislation breached the human rights of tobacco companies.
It’s this same mechanic that we’re currently experiencing as tobacco companies go to foreign courts to interfere with Australian legislation. The tobacco companies are arguing that they have rights that the Australian democratic process does not recognise and, therefore, the Australian people should not be allowed to govern themselves.
This is what we’re talking about when we agree with Scalia’s dissenting decision in Obergefell:
This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.
So which is it?
If we think that liberal democracies are great, that the people should be free to determine the laws which govern themselves, then we are compelled to agree with Scalia. If we think that the liberal democratic theory is failing, and that the future will depend on our ability to reconcile ourselves with the concept of authority, then Kennedy’s decision is for us.
Either way, we really need to look at our parliaments. How could marriage equality be this frustrated in a system where lawmakers are supposed to represent us?