Soon after last fall's election, a number of commentators began to point out the curious fact that, contrary to conventional wisdom, gay marriage may not have helped President Bush win reelection at all. The conventional wisdom had been (from the Right) that moral issues carried the day, with opposition to gay marriage leading the charge; and (from the Left) that bigotry and intolerance carried the day, with "homophobia" leading the charge. There may be something to this conventional wisdom, however one likes to formulate it. It is possible that gay marriage did get Bush re-electedmostly because the issue was on the ballot in Ohio, the state that swung the election to Bush. The statisticians will have to sort that treacherous question out, if indeed a final sorting-out is possible. But what needs no sorting out, because it is plain as day, is the fact that a very large number of people who voted for Senator John Kerry at the top of the ticketand, we might reasonably infer, voted for Democrats all the way down the ticketwent on to cast their vote against gay marriage. Consider: Bush lost Oregon with 48% of the vote, but a prohibition on gay marriage passed with 57% of the vote. Another blue state, Michigan, resulted in very similar numbers. In decisive Ohio, Bush won with just over half the vote, and a prohibition on gay marriage won 62%. Similarly, in very red Mississippi and Georgia, Bush won with 60% and 58% of the vote respectively, while gay marriage went down resoundingly (86% and 76%). And in this context let us not forget that other blue states, including California, have already passed prohibitions on gay marriage.
In short, the most striking fact about the decisive answer the American people gave to the question of gay marriage, is that it was emphatically the answer of the American people, not some faction or narrow majority of it. The most striking fact about gay marriage is not "division" or disagreement, but precisely agreement.
Now the place to begin any serious political inquiry is not, as we might be inclined, in the minds of intellectuals, but down in the trenches, so to speak, where men are slugging it out over what they regard as the critical questions about who we are as a people and the future character of our nation. It will do us little good to draw our conclusions from the cosmopolitan opinions of urban America, either of the Left or of the Right; for the cosmopolitans are manifestly at odds on this issue (as they are on a number of other central issues) with the rest of their fellow citizens.
What the urban elite tends to overlook is that on an issue like gay marriage the most prominent feature is not disagreement or division but rather settled agreement. Though we are told incessantly that gay marriage is a "polarizing" or "wedge" issue, easily taken up by cynical demagogues, in fact it is not. It is only the lack of perspective among the urban elite that produces this confusion. Gay marriage is only a "wedge" issue between a faction (albeit a loud and ubiquitous faction) and the people themselvesbetween the urban elites and what The Federalist meaningfully terms "the deliberate sense of the community." The "division," such as it is, on gay marriage emphatically does not mirror the division designated by the red and blue states. Let it be noted that blue states by the plenty, while voting reliably for Democrats, even sending near-socialists to Congress year after year, have nonetheless passed prohibitions on gay marriage. Noting this, we are pressed with a pregnant question: Would any state, in the entire Union, act deliberately through its duly-elected representatives sitting in legislative bodies (which do not, mind you, include courts) to legalize gay marriage? We can push the matter farther: How many polities of any kindfederal, state, localwould legislate through their representatives to legalize gay marriage? Atlanta, Georgia votes 9-1 Democratic, yet it would be a close-run thing indeed whether the city would legalize gay marriage.
These are interesting facts, and they point to something larger, for we have yet to really consider the decisive factor in this; the factor which elevates this discussion from the nitty-gritty of politics (where, I say again, all political discourse must begin: not for nothing did Socrates simply walk about the city and interrogate various Athenians) to the supreme heights of political philosophy. Certainly a large number of Americans, probably amounting to a majority, oppose gay marriage on moral and religious grounds (which means, for the Left, that they oppose it because they are bigots), quite aside from constitutional objections. But something has carried this from an issue of majority opinion to an issue of supermajority opinion. Something, in short, has given opposition to gay marriage the status, not merely of a narrow majority but of "the people themselves" (Publius's phrasing again). Is it possible that the decisive objection of gay marriage lies not in its substance but in the method of its enthusiasts? If so, other questions demand attention. Could it be that what so many AmericansDemocrats and Republicans, red-staters and blue-staters, men and women, Pacific Northwesterners and Southernersare so jealous to protect, against the truculence of the innovators and despite all the stigma that attaches to it in polite society, is the nature and form of their government, which the innovators are threatening to subvert? Could it be that what the innovators in their enthusiasm have inadvertently put at issue is the very thing that makes all other issues fade into the background? Could it be that they have threatened, by opening it up to existential examination, the very thing which was so precious that Lincoln mournfully led the nation into a bloody war of brother against brother to preserve, that it "shall not perish from this earth"?
I would answer: yes. The proponents of gay marriage, in choosing as their final legislator the courts of this country, have thrown open to question, in a radical way, the very idea of self-government. They have made us think the unthinkable: that we might no longer be governed, however untidily, however frustratingly, by Publius's "deliberate sense of the community," but rather by a judicial plutocracy, egged on by the urban sophisticates. They have asked us to answer a terrible question. They have asked us to answer whether America will be a republic anymore. The editors of the journal First Things cogently captured the outward legal character of this calamity: "The question before us is how the Constitution will be amended: by judicial fiat or by 'We the People of the United States' employing the means established by the Constitution." They did not go to the deeper philosophical question of our constitution as a republican people.
Nor is that all. For if the engine of this quiet but immense usurpation is the judiciary branch of government, it has been assisted, more in exhibition and publicity than in real substance, by a brace of renegade local officials who, in the frisson of the moment, have here and there (San Francisco most prominently, but also little New Paltz, New York) defied state and federal law, with nary a veneer of lawful authority, to issue marriage licenses to gay couples. These unlikely renegadespredictably enough, considering the population from which the national media draws its ranksbecame overnight celebrities; and their irresponsibility, almost as if it were calculated to do so, gave the issue a popular status and unlikely urgency it would have never achieved if it had merely followed the strictly judicial route of other similar issues. It would be difficult, I think, to overstate the effect of this official lawlessness on that great swath of America that rarely engages passionately in politics. Though these renegades were never nearly as important, in terms of legal substance, as the methodical usurpation of the courts, few things could have been more impeccably calculated to arouse the ire of the generally tranquil American populace than the spectacle of local mayors simply defying duly-enacted law, itself resting on thousands of years of human wisdom and experience, to "marry" homosexual couplesand all of it cheered to high heaven by a transfixed national media. The spectacle was astonishing to behold.
It is true, of course, that judicial despotism has reared its face to the American people before. It reared up, in a sudden stroke, on the question of abortion; and it has poisoned our politics ever since. It reared up, some twenty years before, on the question of racial integration of the public schoolsbut then the urgency of the question was tempered, because the philosophical question was removed from the discussion, when Congress acted properly, authenticating the deliberate sense of the community to pass into law the Civil Rights and Voting Rights Acts. Indeed, some might even argue that the possibility for this particular danger of judicial despotism has always been latent in our constitutional system. But here, I think, for the first time, we have the American courts, from the top on down, preparing to say with no ambiguity, brooking no rebuke: We will be your lawgiver, and you will be our subjects. And this, by its gravity, puts us in the realm of political philosophy. For, just as one cannot have political philosophy without politics, neither can one have politics without political philosophy. It is the nature of political philosophy to discern and clarify and refine, not the final answers but the enduring problems of Man and his political life. Thus the problem of self-government will always be with us. Attempts to resolve its difficulties will only destroy it; and the temptation will ever confront us to simply abandon it as a functioning ideal, for something advertised as more just, more equal, more efficient, or more rational.
The introduction of self-government into the world meant the substitution of rule by force and coercion (and these can certainly include the force of wayward and capricious majorities) with rule by deliberation and consent. It is government by public debate, carried on between citizens, yes, but more precisely between elected representatives. It means compromise and perpetual discussion. It demands patience from the minority even when a cause is just, and magnanimity from the majority even when the political strength is preponderant. It depends upon consensus, and, though it does not set itself against change in principle, it insists that change must come through the proper channels, namely the legislative bodies. It insists, moreover, that a minority must rely on the art of persuasion, and trust in the good faith of its fellows; and that a majority must respect the position of the minority, and bide its time until the minority can be carried along in acquiescence. In short, it is a very demanding ideal. The opponents of democracy, throughout the history of political philosophy (and any man who thinks they are mere reactionaries and fools has clearly not reckoned with them; he can begin with one named Plato), have often charged that it asks too much of men; that on the evidence most men are hardly capable of governing their own appetites, much less a polity. But self-government is what our forefathers entrusted to us. "We," wrote Lincoln, "when mounting the stage of existence, found ourselves the legal inheritors of these fundamental blessings. We toiled not in the acquirement or establishment of themthey are a legacy bequeathed to us, by a once hardly, brave, patriotic, but now lamented and departed race of ancestors." Lincoln knew how fleeting these blessings were. He saw their price.
Now one of the quintessential difficulties of democratic self-government is its bewildering disorderliness, its never-ending loose ends, its ceaseless cross-purposes, its lack of firm, guiding will. Frustrated, disillusioned, the people lose faith. There will always be the threat of tyranny, brought on by the exhausted dissatisfaction of the people. Rousseau perceived this difficulty and thought to correct it with his doctrine of the General Will. Democracy must have something behind it to secure its unity, to command the loyalty of its constituents: that it might not simply fly to pieces. Publius perceived the problem too, and brilliantly interpreted the Philadelphia Constitution to account for it in various ways, including, of course, his doctrine of the Deliberate Sense. Behind all the turmoil of democracy would be the "cool and deliberate sense of the community": a shared agreement on certain supremely important things. We hold these truths. Lincoln thought deeply about the problem of self-government, its natural vulnerabilities and temptations, and with the power of his penetration and the majesty of his eloquence, looked to a remedy:
The question recurs "how shall we fortify against [the loss of faith in our institutions]?" The answer is simple. Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor;let every man remember that to violate the law, is to trample on the blood of his father, and to tear the character of his own, and his children's liberty. Let reverence for the laws, be breathed by every American mother, to the lisping babe, that prattles on her laplet it taught in schools, in seminaries, and in colleges;let it be written in Primers, spelling books, and in Almanacs;let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its altars. (Lyceum Address, 1838.)
This, Lincoln's "political religion," I submit to you as the force behind the opposition to gay marriage. Enfeebled by a thousand sophistries, enervated by a dozen mad modern ideologies, attenuated by the distance of time and loss of nearness or urgency, the American people, We the People of the United States, have not yet lost our reverence for the laws. We will not suffer to have rogue mayors and supercilious judges transform utterly, in their rush to accomplish an innovation of very dubious justice, the way in which we make decisions about ourselves as a people. Such a transformation is already underway in various quarters, as I indicated above; but never has it been so brazenly advanced, its opponents so vehemently denounced. In their heedlessness, the opportunistic advocates of judicial despotism would make a revolution in our character as a people; they would blindly draw in the train of their favored innovation a question of the profoundest importance, and reprove with the greatest ferocity anyone who feels, though he may not be able to articulate it, that such a course of action, whatever its ultimate goal, will surely wound, perhaps fatally, the American system of self-government.