The late William F. Buckley famously said that a conservative is a fellow who is standing athwart history yelling “Stop!” It’s just that he may not have meant that as a compliment, at least not entirely. Buckley may have been the driving force in American conservative thought for many decades – he was its public face and its defender and explainer – but he was also a subtle thinker and fond of deep irony. Gore Vidal did call Buckley a Crypto-Nazi on national television, but if he was, he hid it well – and he knew full well that no fellow can stop history. He was just commenting on a way of thinking that he saw as both heroic, in its way, and rather absurd. Yes, he could laugh at himself. No one else could laugh at him, especially someone like Gore Vidal, but he got it – conservatism had a touch of the absurd about it. That’s why, in 1962, Buckley denounced Robert Welch and the John Birch Society in that all-things-conservative magazine he had founded, the National Review – because Welch and his crowd were “far removed from common sense” and the Republican Party should have nothing to do with them. Fluoridation was not a communist plot. Conservatism didn’t need an additional layer of absurdity. And from that point forward the John Birch Society was marginalized. That was the age of sensible Republicans, before Rush Limbaugh became modern American conservatism’s public face and its defender and explainer. Limbaugh is not a subtle thinker.
That’s what was lost as Buckley faded from the scene and finally passed on in 2008 – supple and careful conservative thought. He had not been happy that it had disappeared. Naturally, he thought that the perpetually startled younger George Bush was a disaster – and that with the Iraq War “the conservative movement he had created had in effect committed intellectual suicide” and so on – and he was also fine with legalizing marijuana. But things had changed. He may have once marginalized the John Birch Society, but the neoconservatives and the evangelical religious right took their place. What he had called common sense had somehow become a betrayal of conservative principles, and he became that nice old man from another age that today’s conservatives dismiss as irrelevant now. They think that they actually can stop history.
They can’t. They just had another day of that:
Texas on Wednesday became the latest state to have a federal judge strike down its same-sex marriage ban, thanks to a sweeping decision holding that its current prohibition has no “legitimate governmental purpose.”
The ruling, by San Antonio-based Judge Orlando Garcia, will not take effect immediately: Its enforcement has been stayed while the case works its way through the appeal process, meaning same-sex couples in Texas cannot get married for the time being.
Still, gay rights supporters and activists believe the judgment – because of what it says, how it follows similar rulings in other states and where it happened, in one of the most conservative states in the country – has special significance.
This has special significance because Texas is the least likely place to cotton to the gay marriage stuff, but then, history cannot be stopped:
In November 2005, Texas became the 19th state to adopt a constitutional amendment banning gay marriage. Whether homosexual couples should be allowed to wed like heterosexual ones was a hot-button issue then and in subsequent years, with polls showing that most Americans favored restrictions.
But public opinion shifted over time. A CNN/ORC International survey last June found a majority – 55% – of Americans back same-sex marriage, up 11 percentage points from 2008.
A total of 17 states now allow such legal unions, due to actions by voters, state courts or their legislatures.
Public opinion shifted, and the courts did a bit of a common sense thing:
The most significant such move came last June, when the Supreme Court rejected parts of the Defense of Marriage Act while ruling same-sex spouses legally married in a state may receive federal benefits. The justices didn’t go as far as saying that all states must allow such marriages to take place within their borders, but a number of lower federal courts have since stepped in to the fray.
Of course they did. Antonin Scalia warned his colleagues that if they held that denying the federal benefits of marriage to gay couples, married in states where such marriages were legal, was unconstitutional, they’d be creating the argument that gay marriage was, de facto, legal in some way, and logically had to be legal everywhere. He was right. The rulings in those lower federal courts often cited his dissent. Federal judges have ruled that gay marriage bans in Virginia, Kentucky, Oklahoma and Utah violate the Constitution. Judge Garcia, in Texas, did the same, saying that “equal treatment of all individuals under the law is not merely an aspiration it is a constitutional mandate.” This whole thing is over. There’s no reason to think any appeal will succeed. The law is clear enough, now. There’s no reason to think that gay marriage will not be legal in all states by the end of Obama’s second term. Go ahead. Shout “Stop!” Somewhere, William F. Buckley will be smiling, because you didn’t get the subtle irony in that – you didn’t get the joke.
Rick Perry didn’t get the joke:
“Texans spoke loud and clear by overwhelmingly voting to define marriage as a union between a man and a woman… and it is not the role of the federal government to overturn the will of our citizens,” said Perry, an outspoken conservative who ran for president in 2012. “… This is yet another attempt to achieve via the courts what couldn’t be achieved at the ballot box.”
In November, 2005, Texas became the nineteenth state to adopt a constitutional amendment banning gay mattiage, and they’re all going down. The will of the citizens has its limits, as Judge Garcia noted:
“The Texas law is unconstitutional because, without a rational relationship to a legitimate governmental purpose, it denies same-sex couples the benefits, dignity and value of celebrating marriage and having their out-of-state marriage recognized,” the judge said.
In his ruling, Garcia raised notable arguments from some supporters of same-sex marriage bans: that allowing such unions would hurt children raised in them, that it would stifle procreation and that it “could lead to the recognition of bigamy, incest, and pedophilia and group marriage.”
The judge then shot down the defense’s case. “Procreation is not and has never been a qualification for marriage” and “tradition, alone, cannot form a rational basis for a law.”
Texas has “the ‘unquestioned authority’ to regulate and define marriage,” but only “in a way that does not infringe on an individual’s constitutional rights,” Garcia added.
That’s that. The state could argue, on appeal, that certain citizens should not ever have full rights, because God told the state that these people are sinners, even if He didn’t tell the federal government. That must have slipped His mind, but this won’t fly either – unless they have a duly notarized state-specific memo from God, and the appeals court rules that the new God-memo trumps the federal constitution. Or they could yell for history to stop. Good luck with that. This is over.
It way a bad day for yelling at history anyway, as two states west, it also rolled on:
Gov. Jan Brewer, a Republican, vetoed a bill on Wednesday that would have given business owners the right to refuse service to gay men, lesbians and other people on religious grounds.
Her action came amid mounting pressure from Arizona business leaders, who said the bill would be a financial disaster for the state and would harm its reputation. Prominent members of the Republican establishment, including Mitt Romney and Gov. Rick Scott of Florida, also sided with the bill’s opponents, who argued that the measure would have allowed people to use religion as a fig leaf for prejudice.
Ms. Brewer announced her veto at a hastily called news conference after spending the day holed up in the Capitol in private meetings with opponents and supporters. “I call them like I see them, despite the cheers or boos from the crowd,” she said. She added that the legislation “does not address a specific or present concern related to religious liberty in Arizona,” and that it was “broadly worded and could result in unintended and negative consequences.”
The whole thing was nonsense:
A range of critics – who included business leaders and figures in both national political parties – said it was broadly discriminatory and would have permitted all sorts of denials of service, allowing, say, a Muslim taxi driver to refuse to pick up a woman traveling solo.
Supporters said the bill was needed to allow people to live and work by their religious beliefs. “This bill is not about allowing discrimination,” State Senator Steve Yarbrough said during debate on the measure last week. “This bill is about preventing discrimination against people who are clearly living out their faith.”
Is that so? The bill legalized discrimination, in quite specific ways, listed carefully, one by one, and its backers said that the bill had nothing to do with hatred and prejudice at all – it was a matter of their religious freedom, and of the state forcing them to do things that God clearly told them never to do. The state was discriminating against them, damn it – but this bill was a way to stop the state from telling them they had to betray their religion – and with this veto the state is now forcing them to betray God Himself, or Herself, or Itself, or whatever. Not that it matters now. She vetoed the thing, even if her motives weren’t pure:
Hour by hour, the state began to lose business even as the governor deliberated: The Hispanic National Bar Association said Wednesday that it had canceled plans to hold its annual convention of 2,000 lawyers here next year, citing the bill and saying in a statement, “It is imperative that we speak up and take immediate action in the presence of injustice.”
The National Football League, which is planning to hold the Super Bowl here next year, started actively exploring other options in case Ms. Brewer signed the bill. …
After the bill passed the Legislature and set off a national uproar, tourists and business travelers started directing hundreds of calls and emails to the Arizona Lodging and Tourism Association, a trade group, telling that they would never again visit the state if the measure was approved. A growing list of companies – Apple Inc., American Airlines, Intel – added their voices, some with threats to withdraw business from the state if the measure became law.
There was that, along with a bit of history to live down:
Arizona is still struggling to repair its image and finances after the boycotts and bad publicity it endured after the passage of an immigration law in 2010 that gave police officers the right to stop people whom they suspected of being in the country illegally and made it a crime for illegal immigrants to hold jobs.
The state also faced a boycott almost 20 years ago, after voters initially refused to recognize Martin Luther King’s Birthday as a state holiday. At that time, the state was also set to host the Super Bowl, but the NFL looking to avoid controversy, moved the game to Pasadena, Calif.
Brewer has a state to run. She did what had to be done, and Christians whose God tells them not to do business with or even be in the same room with the ungodly will just have to serve or rent to gay folks, or black folks if that’s their subset of Christianity, or the Irish or whatever. Other Christians are more “Christian” about such things. They should all get together and talk to each other about this. They might invite the new Pope, or not – he thinks the rich need to share a bit more, and that capitalism can go sour, and has. It’s just that the state, and history, has moved on. Look! Icky gay people! Yeah, and your point is what, exactly?
Paul Waldman tries to untangle all this:
Anyone could say that almost any belief they have springs directly from their faith and their reading of scripture, and the state would be required to abide by it. Your faith tells you not to obey laws against discrimination? Well, maybe mine tells me that paying taxes is an offense to God. And my neighbor is a biblical literalist, so when his teenage son mouthed off to him, he arranged for the boy to be stoned to death, just like the Lord instructs quite clearly in Deuteronomy 18 and Leviticus 20. Surely we can’t convict him of murder, since he was only following his sincere religious beliefs.
You might say, well, those beliefs are ridiculous. Maybe they are. And maybe I find your opinions about gay people ridiculous. But up until now, neither one of us has had to have our own liberty compromised because of what the other believed, because we defined the First Amendment’s free exercise clause through religious practice. The government can’t tell you how to worship your god, and it can’t do things that make it difficult for you to worship as you’d like.
But now, conservatives are pushing a much broader conception of religious freedom, one that extends beyond religious practice to virtually anything a religious person does. But it’s when you take your religious practices outside of your own faith, your own beliefs, and your own practice and start applying them to other people that you lose the special privileges that religion is accorded. As an old saying has it, my right to swing my fist ends precisely where your nose begins.
This is fairly simple:
Any Christians who want to can believe that gay people are sinful and wicked or that gay marriage is a terrible thing. What they can’t do is use those beliefs as a get-out-of-jail-free card that gives them permission to break the law or escape civil liability when they harm other people.
Up until now, the distinction between religious practice and the things religious people do when they enter the secular world has worked pretty well. Anti-discrimination laws don’t mean that a rabbi has to conduct a wedding for two Baptists. Religious organizations can hire only people of their own faith. But once you enter into other realms, like commerce, you have to obey the laws that govern those realms.
If we grant religious people the kind of elevated citizenship conservatives are now demanding, where the special consideration given to religious practice is extended to anything a religious person does, the results could be truly staggering. Why stop at commerce? If things like employment law and anti-discrimination laws don’t apply to religious people, what about zoning laws, or laws on domestic abuse, or laws in any other realm?
The counterargument to that doesn’t hold up:
The supporters of these laws… argue that religious people shouldn’t have to put aside their beliefs when they act in the secular world. “It’s alien to me that a business owner can’t reflect his faith in his business,” said one Republican Arizona legislator. But when your business puts you in contact with people who don’t share your faith, putting aside your religion is precisely what you have to do, if “reflecting” that religion means violating the law.
And there’s this:
For many years, conservatives would argue that they didn’t really object to equal rights for gay people, they were just against “special rights.” In practice, what they meant by “special rights” were things like the right not to be fired from your job or evicted from your home because of your sexuality, rights that weren’t special at all. But today, religious conservatives are demanding truly special rights for themselves. They want one set of laws that applies to everyone else, and another set that applies only to the religious. Or more precisely, they want religious people – but no one else – to be able to pick and choose which laws apply to them, and which they’d prefer to ignore. That’s a twisted version of the liberty the First Amendment was supposed to guarantee.
Of course it is, and it’s actually yelling at history to stop, sometime before the First Amendment was written, or even before that line in the Declaration of Independence about everyone’s inalienable right to life, liberty, and the pursuit of happiness.
There’s only one possible way out of that trap, which Slate’s Dahlia Lithwick explains:
The gun lobby has single-handedly made certain that the very definition of what one might reasonably expect from an altercation at a Walmart, a movie theater, or a gas station has changed. By seeking to arm everyone in America, the NRA has in fact changed our reasonable expectation of how fights will end, into a self-fulfilling prophecy about how fights will end. It should surprise you not at all to learn that of the 10 states with the most lenient gun laws in America seven support “stand your ground.” In those jurisdictions shooting first isn’t merely “reasonable.” It borders on sensible.
And it’s not just cultural expectations that are shifting. We’re also shifting what we ask of our jurors. Under “stand your ground,” we are asking jurors to impose a subjective test about whether the shooter was experiencing a profound moment of existential panic. We are asking them whether – in a country seemingly full of people who are both armed and terrified that everyone else is armed – shooting first makes sense. By redirecting jurors to contemplate whether people who are armed and ready to kill are thinking reasonably about others they believe to be armed and ready to kill, we have created a framework in which one’s subjective fears about the world are all that matters. Or as the father of one victim explained to the Washington Post, “Somehow, we’ve reached the point where the shooter’s word is the law.”
So one thing leads to another:
Every time we hear about a Zimmerman, a Dunn, or a Cyle Wayne Quadlin, we get a little bit closer to believing that we need to become a Zimmerman, a Dunn, or a Cyle Wayne Quadlin merely to protect ourselves. And then it gets a little bit easier for us to relate to, and to believe, the next Zimmerman, Dunn, or Cyle Wayne Quadlin. It’s a perfect loop of logic. We define the reasonableness of a lethal response by the growing number of lethal responders. “Stand your ground” laws, or at least the public conception of what they do, are changing the way the rest of us think about self-protection. This is, of course, exactly the world the NRA dreams of constructing: Everyone armed and paranoid that everyone else is armed. But the old canard, that an armed society is a polite society, is pretty much bunk. Ours is not a polite society; we are rude and hotheaded and terrified. Now we have guns to help us sort it all out.
Heather Parton (Digby) sees where this leads:
In the final analysis, I think most people will not take a chance on getting into a deadly altercation. If it becomes accepted that the bullying types who demand “respect” and like to tell strangers to follow their orders are packing heat, and most people aren’t going carry their own guns and they aren’t going to be reckless enough to get into gun battles with armed thugs.
They will submit.
They will keep quiet.
They will apologize and move on.
Sure, there will be more killing of young men and assorted people asserting their right to speak, but once most of us understand that we could die if we fail to follow a bullying stranger’s orders, we’ll usually do what we’re told. Life is already short enough.
That may seem off-topic, but it isn’t. Imagine an angry Christian florist being asked to provide flowers for a big gay wedding, who refuses the business, even if it means passing up a five thousand dollar job. Does that florist really want to explain why his God will send him straight to hell for those thirty giant rose centerpieces, or rely on the State of Arizona to allow him to put up that NO GAYS HERE sign? Why not just stroke the AR-15 and smile? In Texas, let those folks marry if they’d like, but they won’t feel too comfortable with the teenagers with their new assault rifles rolling by their new home, day after day, doing nothing, really. You don’t have to yell at history to have it stop. Not that it will stop. Even absurdly conservative Bill Buckley knew that.