In his dissent in United States v. Windsor, the Supreme Court decision invalidating the federal definition of marriage as natural marriage, Justice Scalia rightly identified as particularly outrageous the Court’s assertion that the purpose of the definition was a “‘bare … desire to harm’ couples in same-sex marriages.”
The assertion is ignorant and bigoted to the point of being delusional. It’s not as if the justices hadn’t seen arguments to the contrary. How did they come to say such a thing?
From one perspective the Court was simply doing what it always does when it establishes as a matter of constitutional law sexual autonomy rights that are favored by governing elites but lack any basis in the Constitution. It has the justice with the least professional shame (William O. Douglas) or the least intelligence (Harry Blackmun, Anthony Kennedy) put together some words that purportedly support the right. The rest of the majority then attach their names to what he writes, and it becomes a leading case from which principles and language can be extracted for use in further development of legal principle.
Still, four additional justices signed on to the opinion as it stands, and no doubt commented on it in advance, and they had good reason to take what it said very seriously. Also, they had signed on to similar assertions in previous majority opinions composed by Justice Kennedy. So we have to assume that they are prepared to commit themselves to the assertion and want it treated as a prominent example of the kind of reasoning by which our fundamental law should be determined.
Kennedy did not, of course, invent the claim. He has enough intelligence, and undoubtedly received enough advice, to choose a theme that would fly in the circles he wants to impress. And from what counts as serious discussion by serious people in our country it is clear that most well-placed and influential Americans have come to believe that opposition to same-sex marriage can only be a matter of ignorance and bigotry. They are convinced that a social institution that involves sexual differentiation can have no legitimate function or right to exist, and the point is so obvious that no rightly constituted mind could possibly believe otherwise.
But why on earth would anyone believe such a thing?
To all appearances, the view is based on a radically individualistic view of man and a technological view of reason and society. On that understanding, society is a collection of equal individuals with no qualities, not even sex, other than those they freely choose for themselves. Those individuals have various desires and the equal right to have those desires fulfilled, and the point of morality and politics is to create an order of things that secures their fulfillment as much and as equally as possible. The desire for respect and acceptance is one of the most basic human goals, so the right to equal fulfillment includes the right to equal respect for the self-understanding and way of life of every individual, whatever that may be.
On such a view no human relationship should be recognized that is not simply a matter of choice equally open to everyone. Individuals are equal units, and they define for themselves what they are and what their relationships are, so it is not clear how unchosen or predefined relationships could come about. And if such relationships did exist, and they were recognized, then individuals and their desires would not get equal respect, because people who wanted such relationships would be at an advantage over those who did not.
Such views are considered an obvious demand of reason and justice. To reject equal fulfillment as the highest standard and technology as the model for putting it into effect can, it is thought, only be a matter of greed, bullying, sadism, or irrationality. After all, the alternative to giving people what they want equally is preferring some people and their desires to others, the alternatives to technology are passivity on the one hand and magical thinking on the other, and the alternative to equal respect is suppression of some people and what they want for the sake of a scheme that other people want to impose on them. How can any of that be justified?
Since it is all so obvious, or so it is thought, resistance is not merely misguided or wrong but an expression of gross irrationality that can only be motivated by gratuitous hatred. It is evidently for some such reason that the Windsor majority treats those who disagree with it, in the words of Justice Scalia, as hostes humani generis: enemies of the human race.
That may be the most disturbing feature of a profoundly disturbing decision. Modern thought tends toward an ideal of transformation through radical simplification and controlled but ruthless use of force. That tendency has been remarkably effective in dealing with the physical world. In the social world, however, it has led to extremes of tyranny and violence, so much so that the largest cause of violent death in the very violent twentieth century—much larger than war or murders perpetrated by radical nationalist regimes—was the murder by progressives of people they didn’t consider progressive enough. If someone rejects the obvious dictates of reason, justice, progress, and history for no conceivable legitimate motive, the thought seems to have been, he’s resigned from the human race and should no longer be treated as human. His interests don’t count, so whatever he gets is good enough for him.
The radically ideological type of progressivism that has led to such conclusions is, I believe, something new in mainstream American public life. In the past there have been different forms of progressivism that seemed deeply opposed to each other, and America has consistently chosen the better part. The Anglo-American enlightenment was more moderate than the Continental one, liberalism milder and far more humane than communism, and so on. As the logic of “progress,” which is really the application of technological thought to human life, works itself out such distinctions seem to be vanishing.
To some extent the result has been a decline in the extremes of left wing violence, which no longer make sense when the principles of the left have been adopted by all public authorities and the more extreme methods of advancing them have been tried and found wanting. To some extent, though, the result has been the disappearance, even among those counted as moderate, of any sense of limitation or of the possible legitimacy of other considerations and perspectives. Progressive modernity aims to abolish the transcendent and create a perfectly rational and self-contained system, a project that is the essence of totalitarianism. As it proceeds and destroys alternative authorities it comes to pervade the whole of thought and becomes harder and harder to criticize by any standard outside itself—that is, on any grounds other than insufficient purity. The intellectual result can be seen in the Windsor case. The practical results are likely to include open-ended suppression of dissidence, which increasingly seems irrational, antisocial, and groundless. The most obvious consolation, but that a bleak one, is that the results are also likely to include increasing stupidity leading to bigger and bigger errors that will make the system increasingly nonfunctional and perhaps destroy it within a few decades. We shall see.