First Law of Thermodynamics: You can't win.
Second Law of Thermodynamics: You can't break even.
Third Law of Thermodynamics: You can't stop playing.
Our illustrious United States Supreme Court reminded us why this joke describes not only Thermodynamics, but also the life of a traditionalist in Post-modern America. We see this exemplified in the recent two decisions regarding homosexual marriage in The United States.
In one case, The United States v. Windsor, a woman who had married a same-sex partner in Toronto, Canada attempted to sue the IRS for a refund of her estate taxes when she inherited from her partner. This was illegal under DOMA and the US Attorney General refused to defend section 3 of The Federal DOMA in court.
The House of Representatives Bipartisan Legal Advisory Group then attempted to do the US DOJ’s job for them and represent the government but was only allowed to hold advisory statues by the District Court that heard the case. This made the BLAG involved enough to serve as a pretext to grant certiorari, but not effective enough to really count as opposition. And finally, if the DOJ wasn’t fighting for Section 3 of the DOMA, why didn’t Windsor just get her money? You can’t expect to win when the whole thing is this much of a set-up to involve the USSC.
So what then happens if more traditionalist-minded people try to level the playing field a wee bit? Let’s say a significant majority of an electorate passes a referendum that preserves marriage as a solemn union of one man and one woman. Take, for example, Prop 8 in California.
Well, in the case of Hollingsworth v. Perry, here’s what happens. A lower court rules against Prop 8. The State AG of California refuses to enforce the law. An outside group steps in, sues the state to make it do its job and enforce the law. This gets dismissed and the outside group is told they, unlike the BLAG, do not have sufficient standing to come before the court. Chief Justice Roberts writes as follows.
"We have never before upheld the standing of a private party to defend the constitutionality of a state statute when state officials have chosen not to. We decline to do so for the first time here," Chief Justice John Roberts wrote for the majority, joined by Scalia, Ginsburg, Breyer and Kagan.
So outside counsel that intercedes in the stead of a non-performing government has standing or it doesn’t. That standing depends upon the political leanings of the court towards the issue at hand. Thus laws or referendums that US Supreme Court majorities dislike for professional or ideological reasons can be slighted through maneuvers such as a lack of standing finding regardless of the validity of the process by which said laws were enacted. And this doesn’t even require the court to specify which aspect of the law in question that they find odious or athwart the intent of the United States Constitution. You can’t break even.
In response to a game where you can’t win or break even; the logical mind rebels against playing. Perhaps the option exists of just not caring. Other people can have threesomes, foursomes or moresomes, if they’ll just drive out in the woods and do it instead of parading in front of my kid’s Elementary School. Except that they won’t. It will not end with people with different preferences separating and keeping their respectful distances.
When Elane Photography in New Mexico declined to photograph a same-sex commitment ceremony on the grounds of their religious beliefs, they were made to care. George Will describes how the homosexual couple took the small business to court to force them to provide services that directly contravened their religious faith.
Willock, spoiling for a fight, filed a discrimination claim with the New Mexico Human Rights Commission, charging that Elane Photography is a “public accommodation,” akin to a hotel or restaurant, that denied her its services because of her sexual orientation. The commission found against Elane and ordered it to pay $6,600 in attorney fees.
And numerous other examples abound. Bed and Breakfasts that don’t rent to homosexuals, bakeries who won’t do cakes for homosexual weddings and other small businesses are now targets when they refuse anybody service. At this point, if a business person loses the option of refusing service at the cost of whatever profit they would have earned, they are less the citizen and more the subject. They are being compelled to perform by the iron-fisted majesty of the state against their personal conviction. They can’t win, they can’t lose and no, they can’t even refuse to play.