divThat’s the title of a symposium that the Federalist published after the Obergefell ruling. It included mini‐opeds from a range of people on both sides of the debate, including Newt Gingrich and Mike Lee. Here was my contribution:
Just because today’s opinion was expected by nearly everyone doesn’t make it any less momentous. In sometimes‐soaring rhetoric Kennedy explains that the Fourteenth Amendment’s guarantee of both substantive liberty and equality means there is no further valid reason to deny this particular institution, the benefit of these particular laws, to gay and lesbian couples. Okay, fair enough: there’s a constitutional right for gay and lesbian couples to get marriage licenses—at least so long as everyone else gets them. (We’ll set aside the question of why the government is involved in marriage in the first place for a later time.)
But where do we go from here? What about people who disagree, in good faith, with no ill intent towards gay people? Will ministers, to the extent they play a dual role in ratifying marriage licenses, have to officiate big gay weddings? Will bakers and photographers have to work them? What about employment‐discrimination protections based on sexual orientation—most states lack them, but are they now required? And what about tax‐exempt status for religious schools, the issue that came up during oral argument?
divIt’s unclear to be honest—much depends on whether Anthony Kennedy remains on the court to answer these thorny questions in his own hand‐waving way—but all of these examples, including marriage licensing itself, show the folly inherent in government insinuation into the sea of liberty upon which we’re supposed to sail our ship of life. (Justice Kennedy, you can use that one next time; no need even to cite me.)
divIf government didn’t get involved in regulating private relationships between consenting adults—whether sexual, economic, political, athletic, educational, or anything else—we wouldn’t be in that second‐best world of adjudicating competing rights claims. If we maintained that broad public non‐governmental sphere, as distinct from both the private home and state action, then we could let a thousand flowers bloom and each person would be free to choose a little platoon with which to associate.
divBut the extent to which we live in that world is decreasing at a horrendous pace, and so we’re forced to fight for carve‐outs of liberty amidst the sea of mandates, regulations, and other authoritarian “nudges.”
In any event, good for the court today—and I echo Justice Kennedy’s hope that both sides will now respect each other’s liberties and the rule of law. But I stand ready to defend anybody’s right to offend or otherwise live his or her life (or run his or her business) in ways I might not approve.