Rights are rights. Blowback is irrelevant.
by David Atkins
Marriage equality advocate Mae Kuykendall writes an op-ed in the New York Times demonstrating the key element, that has gone wrong with liberalism over the last 30 years. She argues, essentially, the the Supreme Court should thread the needle on the coming challenges to marriage discrimination laws by forcing states to recognize same-sex marriages performed in other states, without requiring those states to perform the ceremonies themselves:
Some observers expect the court to dodge the issue. They assume that the best that can be hoped for is a long period of legal skirmishes that will gradually chip away at states’ denial of the rights and privileges of gay couples who marry where it is legal to do so. But a protracted and agonizing battle would not be good for anyone.
I happen to believe that same-sex marriage is a fundamental right under the 14th Amendment’s equal protection clause. But I also believe that the court isn’t ready to go that far. Directly mandating that states rewrite their laws to allow same-sex marriages (and that county clerks issue marriage licenses to gay couples) would risk the kind of backlash that followed court-ordered school desegregation in the 1950s.
In contrast, a more limited ruling that forbade states from voiding other states’ marriages would recognize equality as a fundamental norm of citizenship while also speaking to values, like fairness and neighborliness, that are often obscured by anti-marriage ballot initiatives. An example of this can be found in Wyoming, where Republican legislators defeated a bill last year that would have prohibited recognition of out-of-state marriages.
One can empathize a little with Ms. Kuykendall’s desire to find an outcome that might allow conservatives to save face and avoid a major backlash. But it’s deeply misguided.
Rights are rights. That’s why they’re called “rights.” One might wish they were enforced globally, but the limitations of power structures usually prevent that, at least at this point in human history. So insofar as our courts have jurisdiction, we expect them to enforce rights within our borders.
Imagine the contempt we would have today for an opinion writer who used the same logic for interracial marriage that Ms. Kuykendall does on same-sex marriage. Did Loving v. Virginia create a backlash, especially in certain states I’ll politely refuse to characterize? Yes, of course it did. Was it the right thing to do, anyway? Of course it was. Did the locals view it as the tyranny of a federal power intervening in business that it didn’t belong in, obliterating decent God-fearing local customs at the point of a federal marshal’s gun? I guess so. Too damn bad. Rights are rights, and local prejudices don’t get to determine who has rights and who doesn’t. If we had the civil rights era to do all over again, knowing that the Civil Rights Act would usher in two generations of Reaganomics delivered at the hands of racists and their puppeteers, would we do anything differently? No, we wouldn’t. Some principles are worth fighting for, and applying as universally as possible.
And if that means the regressive localities in question decide to wage a culture war and deliver blowback to the more progressive ones? Too damn bad. We’ll do without their votes, and drag them kicking and screaming into the 21st century, anyway.
That’s been the progressive program in the modern era ever since at least the late 19th century. The victories are never easy. There’s usually blowback, mostly political but also violent at times. And in the long run it’s worth the cost. The left broadly speaking used to understand that. I wonder if it still does.
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