Texas was all set to pass a set of restrictions on abortion Tuesday night. The legislation would ban abortion after 20 weeks, a position supported by a heft 62 percent of the local electorate. Stricter health and safety standards for abortion clinics would have been imposed, with an eye toward preventing further horrors in the style of Philadelphia abortionist Kermit Gosnell’s ongoing re-enactment of the “Hellraiser” films.
But then Democrat state senator Wendy Davis staged an all-day filibuster, because abortion fanatics just can’t abide the notion of any procedure getting banned, or any tough standards applied to those sacred clinics. Usually Democrats despise filibusters these days, portraying them as dire threats to democracy, and they’re generally all in favor of bludgeoning big business with regulations. This was evidently a special case on both counts. If you really want power, you can’t afford to let principles get in your way.
The filibuster might have been in line with the rules of the Texas Senate, but what happened next was not. A crowd of some 400 pro-abortion protesters packed into the Senate chamber and literally drowned out the vote with their screaming and yelling. The legislature was unable to finish voting and secure the signature of Lt. Governor David Dewhurst before the midnight deadline. “I didn’t lose control – we had an unruly mob,” said Dewhurst, before shrugging off the debacle and looking forward to another shot at passing the legislation. “It’s over. It’s been fun. But see you soon.”
That’s awfully sporting of him, but why should anyone – including abortion enthusiasts – be comfortable with the spectacle of mob rule overriding representative democracy?
The very next day, we got a dose of mob rule at the Supreme Court, as the liberal wing joined with the swingiest swing justice to ever swing from a court, Anthony Kennedy, to strike down Section 3 of the Defense of Marriage Act. The 5-4 majority was very clear that its personal preferences colored the decision. They didn’t see any way a decent person could support restricting federal benefits to same-sex couples, so the machinery of representative democracy (and the signature of President Bill Clinton) was demolished with a judicial wrecking ball. No further input from the people of the United States – or, more to the point, their elected representatives – would be solicited.
Dissenting Justice Antonin Scalia was livid. “To defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions,” Scalia wrote. “To hurl such accusations so casually demeans this institution. In the majority’s judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of a presumptively valid statute is to act (the majority is sure) with the purpose to “disparage,” “injure,” “degrade,” “demean,” and “humiliate” our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did no more than codify an aspect of marriage that had been unquestioned in our society for most of its existence indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose change by adjudging those who oppose it hostes humani generis, enemies of the human race.”
The proponent of same-sex marriage might point to opinion polls showing rapidly growing support over the past few years, and suggest the Supreme Court was acting in accordance with the popular will. Well, that’s not the Supreme Court’s job. And the sacred power of the “popular will” didn’t count for diddly-squat in California, where voters overwhelmingly approved a ban on gay marriage… but the state government ignored it, the state courts beat it to a pulp, and the Supreme Court suddenly decided it wasn’t so interested in popular morality after all.
The California punt might spell the end of popular referendums, since the ruling class can apparently disregard them. Some would applaud this demise, because they don’t like the use of such populist mechanisms to override representative government. But when four hundred abortion protesters cram into the Texas Senate and declare themselves agents of a “popular filibuster,” representative government goes right out the window, as it does when the Supreme Court tosses out a law duly passed by Congress and signed by one President, but ignored into oblivion by another. Sometimes those acts of Congress last forever – just ask any liberal who insists ObamaCare is the eternal and unchanging law of the land now. But other times an act of Congress becomes ephemeral and easily discarded. It all depends on the whims of the ruling class, which is not much interested in what any but the largest, most disciplined, best-funded political organizations has to say about it.
No one ever asked the American people if they wanted to give up on the Republic. It was quietly poisoned and strangled over a number of years, until its stuffed and mounted corpse became something for the ruling class to wheel out when it’s time to suppress undesirable surges of independence. Those Supreme Court justices who ruled against DOMA on the grounds of equal protection and federalism have very little interest in either, under most other circumstances.
It’s almost comical to hear anyone talk about “equal protection” in this age of activist super-government. The gay couples celebrating today’s ruling will be singled out and discriminated against for countless other reasons, ranging from race to occupation and income. Justice Scalia noted that his colleagues were just itching for an excuse to impose their beliefs on same-sex marriage, and today’s case finally gave them one. Do you know what the actual case was about? A woman named Edith Windsor was saddled with a $363,000 estate tax bill because her late same-sex spouse, under the laws of New York and Canada, could not be recognized as a spouse by the federal government under DOMA. That’s quite an estate! Today a triumphant Edith Windsor is hailed as a civil rights hero by liberals; on any other day, they’d sneeringly dismiss her as a “One Percenter,” and howl for the State to confiscate more of her wealth. (Which she worked very hard for, by the way, having begun from humble origins, then earning a master’s degree in mathematics, and rising to “the highest technical position within IBM,” according to a profile at the UK Guardian. Her late spouse, Thea Spyer, was a clinical psychologist with a private practice.)
Perhaps instead of objecting to how the Defense of Marriage Act forced her to pay that huge estate tax, Windsor should have objected more strongly to the huge estate tax. The modern construction of government calls for the massive deployment of compulsive force against people who have committed no crime. And none of the other things our wealth and liberty are appropriated to promote delivers anywhere near the social benefits of traditional marriage between men and women. Name your government program, and feel free to stack it up against the power of married men and women sticking together to raise their children. You’ll lose.
The Defense of Marriage Act was meant to prevent a few states from legalizing same-sex marriage, then using the vast network of federal power to transmit that decision to other states. That’s a federalist and republican ideal – realized, perhaps, in an imperfect way through the text of DOMA. A better way would be tearing down the federal leviathan so there weren’t so many federal benefits at stake, and allowing states to make their own marriage decisions, through legislatures responsive to their own citizens. In other words, bring back the Republic, because it beats the heck out of mob rule or elitist central planning. The judicious exercise of limited power through accountable representatives works great. America should give it a try.