William F. Buckley once said that a conservative is “someone who stands athwart history, yelling Stop, at a time when no one is inclined to do so, or to have much patience with those who so urge it.” That was the core idea of the mission statement in the first issue of the National Review – the seminal conservative magazine he founded back in 1955. He meant those words to be heroic and defiant, but history being what it is this notion seemed rather stupid. Things change. It was like Peter Pan screaming that he wouldn’t grow up, he just wouldn’t – but everyone does, unless they conveniently die, or they’re fairytale characters. It was petulance, but since Buckley led such a fascinating life and was so preposterously well-educated and absurdly cosmopolitan, people cut him some slack. Back in the day many of us watched his show Firing Line just to improve our vocabularies. He may have spouted nonsense, but it sure sounded impressive, and you could use those new and quite odd erudite terms to end any argument. No one would understand what you just said, and they’d feel shame that they didn’t, and they’d just shut up. That’s cool, but Buckley appeared in a series of televised debates with Gore Vidal during the 1968 Democratic National Convention in Chicago, where Vidal ended up calling Buckley a crypto-Nazi, which actually seemed quite appropriate at the time, so one must be careful. You might run into someone equally preposterously well-educated, and then you’re in trouble.
That was a minor matter, like the fact that he once worked for two years for the CIA, including one year in Mexico City working as a political action specialist in the elite Special Activities Division for E. Howard Hunt or that he played the harpsichord rather well. The real problem was history, which won’t stop. In 1954 he wrote a book with Brent Bozell defending Senator Joseph McCarthy as a patriotic crusader against communism. You see, McCarthyism was “a movement around which men of good will and stern morality can close ranks.” Joe McCarthy turned out to be a drunken fool who got most everything wrong and ruined many good lives. Oops. Then in the August 24, 1957, issue of the National Review there was Buckley’s editorial “Why the South Must Prevail” – explicitly arguing the case for white supremacy, at least in the South. He argued that “the central question that emerges is whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas where it does not predominate numerically.” The answer was yes, because “the White community is so entitled because, for the time being, it is the advanced race.” That’s just the way it is – so stop this times-are-changing nonsense – but he later changed his mind and said it was a mistake for his National Review to have opposed all that civil rights legislation in 1964 and 1965 – it seems he had been on the wrong side of history. He then started yelling Stop at those who defended ossified nonsense. He pretty much tossed the John Birch Society out of the conservative movement – they weren’t serious people – and he scornfully dismissed Ayn Rand as a shallow fool – and then he faded away. He was no longer standing athwart history yelling anything at all. He had learned better.
No one on the right cares about Buckley anymore – all that is ancient history and maybe the man just gave up. All they might remember is that original mission statement about standing athwart history and yelling Stop to everything that looks like change of any kind, which kind of defines everything Republican today. Stop Obamacare – even if it’s the law now and the Supreme Court long ago declared it quite constitutional. It’s too late for that. Stop gun control, or even universal background checks, even after that Connecticut massacre and the polling shows over ninety percent of Americans want those background checks, now. It may be too late to stop that too, even if this year nothing much will probably happen. Stop all this nonsense about combatting climate change too – the science isn’t in yet, as only all but two scientists say we’re in deep trouble, so the matter isn’t settled until those two come around – and the same goes for teaching evolution, which is only some newfangled theory after all. Sure, but those trains left the station long ago too. As for stopping the nation from slowly getting less white, that too is something no one can stop, no matter what you decide to yell. As returning to the back-alley coat-hanger days before Roe, and returning to a time when any kind of contraception was illegal, or hadn’t been invented yet, good luck with that. Yell all you want. Stamp your feet. Hold your breath until you turn blue. Be the Party of No, but remember that petulant children don’t win elections. Heck, Jeb Bush just warned you:
Bush called on his fellow Republicans to share the party’s message to a broad base of constituencies and argued that the GOP must work to avoid being cast as the party of “no.”
“All too often we’re associated with being anti-everything. Way too many people believe Republicans are anti-immigrant, anti-woman, anti-science, anti-gay, and anti-worker and the list goes on and on and on. Many voters are simply unwilling to choose our candidates even though they share our core beliefs because those voters feel unloved, unwanted and unwelcome in our party,” Bush said.
Forget what Buckley said in that mission statement all those years ago. He was just being glib. He knew better, or more precisely, he eventually learned a thing or two about demanding that history stop. It’s not just that Gore Vidal calls you names. It doesn’t stop no matter what you yell, and the current issue is gay marriage, where things are changing, as Slate’s William Saletan summarizes here:
The struggle to protect family values from homosexuality is starting to feel a bit lonely. In the last five years, eight states have extended marriage rights to same-sex couples. After years of winning ballot measure fights, gay-marriage opponents went 0-for-4 in November. Scores of Republican luminaries have signed a brief urging the Supreme Court to declare a constitutional right to marriage regardless of sexual orientation. And two weeks ago, for the first time, a sitting Republican senator, Rob Portman of Ohio, endorsed same-sex marriage. Behind these developments lurks an ominous trend: Gay marriage, once a fringe idea, is now backed by a majority or plurality in nearly every poll.
You could look it up – the eight states that have extended marriage rights to same-sex couples and those four ballot measures and that amicus brief – from big-gun Republican thinkers no less – arguing that the Supreme Court should declare a constitutional right to marriage regardless of gay cooties or whatever. That sitting Republican senator, Rob Portman of Ohio, did endorse same-sex marriage, and all the polling is clear enough. It’s kind of too late to yell that it all should stop, but Saletan sees them trying:
What the opponents fear next is that these setbacks might influence the Supreme Court. Those mushy-middle justices might decide that the country is ready to accept gay marriage as a constitutional right. This conclusion has to be squelched. Forget the poll numbers. Forget the election results. Americans are dead set as ever against same-sex marriage.
Is that so? Saletan notes that’s the argument, as least about the polls:
That’s what Gary Bauer, the president of American Values, said yesterday on Fox News Sunday. Peter Sprigg, a senior fellow at the Family Research Council, points to the latest Washington Post/ABC News poll, which asked whether “it should be legal or illegal for gay and lesbian couples to get married.” That question, Sprigg explains, is biased because Americans “shy away from making things ‘illegal.'” (FRC also claims that a Reuters/Ipsos survey, which deflated support for gay marriage to 41 percent by including civil unions as a third option, was biased by Reuters’ efforts “to push that number higher.”) The unbiased approach, according to opponents, is to ask whether “marriage is between one man and one woman” -i.e., to avoid mentioning gay people at all.
That’s clever, but they also argue they won thirty states last time around, and Romney also almost won it all, sort of, and there are all those elites too:
The National Organization for Marriage and other opponents have long claimed to represent ordinary Americans against liberal judges. Have the recent ballot measures and polls chastened them? Not a bit. They insist that “media elites,” “cultural elites,” and “major donor elites” are corrupting the polls. Bauer says “a lot of people are changing their minds because there’s been a full-court blitz by the popular culture, by elites … to intimidate and to cower people into no longer defending marriage.” Sprigg adds, “It’s not surprising that younger voters are somewhat more likely to support marriage redefinition than their elders. After all, they have been subjected to a drumbeat of support for it from the news media, entertainment media, and higher education for literally as long as they can remember.” Brown thinks polls undercount his Republican sympathizers: “How many more young conservatives probably support true marriage but are intimidated by their liberal college environment and peer pressure into hiding their pro-marriage views?” These cowed supporters of traditional marriage – apparently poor, uneducated, and easy to command – are hiding in the closet.
That’s an interesting theory, but they don’t extend it, as they still own the Republican Party:
So what if opposition to gay marriage is no longer a majority position among voters generally? It’s still a majority position among Republicans. Reed, Perkins, Rush Limbaugh, and other opponents have fallen back on this argument, warning party leaders that any retreat will trigger a fatal walkout by social conservatives. NOM, unable to assure Republican politicians that opposing same-sex marriage is a safe position in a general election, threatens them instead with defeats in their primaries.
And they’re sure the polls will change anyway. They always do. You’ll see, and anyway, the stupid young people will sooner or later get old and wise, which Saletan finds curious:
Perkins argues that “history – and most statistical data – shows that young people tend to become more conservative and more religious as they grow up, get married, and start families of their own.” Beyond age 23, “people become increasingly religious – meaning that a hasty retreat on marriage may score cheap points now, but it would actually alienate the same people later on.” But the data behind this analysis pertain to religion, not homosexuality. And there’s no precedent, in any generation, for the level of support today’s young people express for same-sex marriage.
Saletan sees no point in yelling for all this to stop:
Nobody knows whether public support for gay marriage will continue to rise at the same rate. This issue might go the way of interracial marriage, or it might get bogged down like abortion, assisted suicide, or single parenthood. But it’s clear that over the last several decades, homosexuality has become widely accepted, and opponents of same-sex marriage have now lost their grip on public opinion. The question going forward isn’t how many more states will ban same-sex marriage, but how many of the bans already passed will survive, and for how long.
Yell all you want. Stamp your feet. Hold your breath until you turn blue. It doesn’t matter. It all goes to the Supreme Court now, and Slate’s Emily Bazelon explains the situation there:
Tuesday and Wednesday, the Supreme Court will dive into back-to-back arguments about gay marriage. These cases are probably the biggest of the term, and certainly the sexiest. First up is an hour of Hollingsworth v. Perry, the suit challenging the constitutionality of California’s voter-approved gay marriage ban. Next comes an hour and 50 minutes on United States v. Windsor, which takes on the definition of marriage in the federal Defense of Marriage Act. That definition – the union of a man and a woman – denies gay couples more than 1,000 federal benefits that come with marriage, relating to everything from inheritance taxes to health insurance for veterans, even when their marriages are legally recognized in the states they live in.
The arguments will feature top lawyers including Ted Olson (former Bush solicitor general, pro-gay marriage), Paul Clement (former Bush solicitor general, anti-gay marriage), Donald Verrilli Jr. (Obama solicitor general, pro-gay marriage, though the Obama administration is still enforcing DOMA), and Vicki Jackson (Harvard law professor who will argue that the Obama administration doesn’t belong in court).
Nothing is ever easy, but Bazelon says one of the keys is Anthony Kennedy:
Kennedy is the swing justice, the one whose vote will probably determine the outcomes of these cases, like so many others. (It must be crazy to have all that power.) As New York law professor Kenji Yoshino has pointed out, there is nothing Kennedy loves more than gay rights and states’ rights. So Windsor, the DOMA case, is perfect for him. It’s the suit in which Kennedy and the court could take an incremental step toward same-sex marriage while also reaffirming states’ traditional power over domestic and family law. (The case also features the appealing Edie Windsor, an 83-year-old New York widow who wants back the $360,000 in taxes she paid when her spouse Thea Spyer died – money she would have kept if she’d been married to a man.) Will Kennedy’s questions suggest that he thinks New York’s definition of marriage should control the federal government?
The California case could be trickier for Kennedy, since it pits a voter-approved same-sex marriage ban, Proposition 8, against the argument that the Constitutions provision of equal protection under the law extends to gay couples seeking the right of marriage. Taken to its logical conclusion, the argument that banning gay marriage is unconstitutional would apply to the entire country – and the laws of 41 states would go down. Olson will try to make it easier by offering Kennedy a way to strike down only Prop 8. The idea here is that California is different from every other state because it allowed thousands of gay couples to marry thanks to a state Supreme Court ruling – and then it took that right away when voters approved the ban. Will Kennedy go for that middle ground? Or will he seem inclined to uphold Prop 8 (the dreaded step backward) or to embrace gay marriage to its national end point, making it (excitingly, but politically prematurely) the law of the land?
Can you stop history just a little, making it only a California issue? That seems kind of silly, but then there’s John Roberts:
Since Roberts’ surprise move last term, when he became the fifth vote to uphold Obamacare, he’s had to endure endless speculation about when he’ll double down with more squishy rulings. (Wall Street Journal headline: Liberal Man of the Year.) I don’t see it -more plausible, I think, is that Roberts bought himself, and the court, the institutional capital to make decisions that are in line with his conservative principles. Still, gay marriage is a winner for the left, politically speaking. One new poll shows national support at a high of 58 percent, and that includes 81 percent of Americans under the age of 30. Even Fox shows a rise to 49 percent, up from 32 percent a decade ago. If Roberts wants to be in sync with the country, he’d vote for striking down DOMA and the California ban too – and if Kennedy is already on board, why not be the sixth vote? Especially because as chief justice, Roberts could write one or both opinions himself, and that way keep them as narrow as possible.
So no one will yell stop here, save for Antonin Scalia:
We know where Scalia stands on gay marriage: He thinks it’s immoral. At Princeton last December, a student asked the justice why he makes an analogy between laws against sodomy, bestiality, and murder. Scalia said: “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?” There is no way this man’s vote is up for grabs. The only question is how far he goes during oral argument to play to his base and bait his foes. At last month’s arguments over the continuing validity of the Voting Rights Act, Scalia talked about the law as “the perpetuation of racial entitlement.” If that’s what he says about one of the most heralded accomplishments of civil rights, what spleen will he vent about gayness?
The New York Times Dorothy Samuels has a bit more on Scalia:
The justice has never shied from courting controversy or blurring the line between law and politics in his appearances and writings – on or off the bench. In 2004, he went duck hunting with then Vice President Dick Cheney, just three weeks after the court agreed to hear a case about the V.P.’s refusal to disclose the records of his secretive energy task force. It provided late night talk show hosts with laugh lines for weeks. …
His increasingly cranky and intolerant pronouncements have become an embarrassment even to people who tend to agree with him. Justice Scalia has not merely pre-judged the issue of same-sex marriage, but has cemented the impression of an anti-gay bias. He is something of a political cheerleader for anti-gay marriage forces and the belief that there is something wrong with gay relationships.
If Supreme Court justices were subject to the ethics code that applies to lower federal court judges, Justice Scalia would probably have to recuse himself.
That’s not going to happen, so Bazelon says it comes down to which test to apply:
When laws treat one class of people differently from another, as Prop 8 and DOMA do, the Supreme Court has a choice. It can strike down such laws only if they have no rational basis. Or it can look more closely, and ask whether the law passes the test of “heightened scrutiny” (the standard in sex discrimination cases) or “strict scrutiny” (the standard when discrimination on the basis of race, ethnicity, or religion is at issue). The justices have never applied one of these higher standards in a gay rights case. But some lower courts have used the heightened scrutiny tests in same-sex marriage cases. Will the justices move in that direction? Personally, I think there’s no rational basis for banning gay marriage. The myth that children fare worse when raised by gay parents, for example, has been shredded by social science. But if the court went for heightened scrutiny in the context of gay marriage, that would make it easier for gay people to sue over employment discrimination or mistreatment as well.
Who knows, and there’s also this:
Clement will urge the court to uphold DOMA, and Cooper will argue for upholding the California ban. So what do they say? Do they stick with their strongest argument, about democracy and separation of powers, which is that the court should respect the will of Congress and of California voters? Do they try to show that gay weddings harm heterosexual couples or the institution of marriage – a theoretical claim with no solid evidence? They can’t make a religious argument, because that’s not how the government gets to justify its laws. And they can’t invoke prejudice (nor would they want to, framed that way). But the lawyers could start talking about tradition for its own sake. If you hear that, it’s a sign they’re getting desperate.
And so it goes. It seems that stopping history is not only inherently futile – it’s also an incredibly complicated and messy business. It’s odd that anyone even tries – but try they do, probably because they took William F. Buckley far too seriously. Even he didn’t do that.