The Supreme Court made big news yesterday. Usually that happens when it hands down an awful decision supporting state power, but this time it was the court’s decision to dismiss appeals and not take a case that made the headlines. County clerks in Indiana, Oklahoma, Utah, Virginia and Wisconsin had asked SCOTUS to examine at previous appeals court decisions that had overturned bans on gay marriage in those states, but the high court declined to revisit those cases. In doing so the court avoided having to make a decision, threw the Republican Party into a fit, and nudged the country a little further in the right direction when it comes to getting out of the way when people decide for themselves how they wish to live their lives.
The GOP responded predictably. Would-be presidential contender Ted Cruz hit party-approved notes when he referred to the court’s dismissal of appeals as “judicial activism at its worst.” showing that he doesn’t understand the difference between refusing to re-examine a case from a court whose judgment it agrees with, which is the court’s prerogative, and creating rights. No surprise there, since Cruz and others like him tried to conjure from thin air the right to discriminate against people whose lifestyles they don’t like.
Activism isn’t declining to take up a court case. Activism is going on a crusade to wield the power of the state, in the way that moralists have done as they attempt to make marriage, a legal contract that grants all manner of privileges, all about sex. This not only elevates the importance of the particular kind of sex somebody likes to have to a ridiculous pedestal, but it belittles the importance of love, freedom of choice, economic self-determination, choosing who gets to be by your side when you die, and the many other things that define a marriage outside of which genitals (or even how many of them) are going into which hole.
That “would-be presidential contender Ted Cruz” is still a legitimate phrase used in news stories should be a scary of the times for the Republicans. But there’s a moneyed faction within the party that insists on opposing personal freedom at any cost and Cruz and his ilk are ready to say what they want to hear, despite the most recent polling showing that as much as 41 percent of the Republicans and 56% of the entire American public supports legalizing gay marriage. So it’s at least a little heartening that someone else in the party with a little bit of media clout is making peaceful sounds in the other direction from Cruz and those who would cut off the GOP’s nose to spite its face.
The Supreme Court declined to revisit gay marriage bans because the outcome is a foregone conclusion. (The Cliff Notes would probably read something like “there is no constitutional right to deny constitutional rights based on your narrow interpretation of millennia-old religious texts.”) And Rand Paul, the libertarian Republican senator from Kentucky, and some other conservatives can see that the potential long-term consequence of being on the wrong side of the American public: a steep decline in power and influence. Paul didn’t exactly say in a CNN interview that he’s in favor of gay marriage – but what he did say was a lot more important.
After pointing out that he’s in favor of “old-fashioned traditional marriage” (though he didn’t say which kind of traditional Biblical arrangement he preferred), Paul said, “But, I don’t really think the government needs to be too involved with this, and I think that the Republican Party can have people on both sides of the issue.” By refusing to condemn the court, he staked out what amounts to a radical position in a party that’s about small government in principle far more than in practice: we shouldn’t all have to approve of every choice the rest of us make, but we also shouldn’t use the power of the state to arbitrarily discriminate against classes of citizens.
It’s a good time for that kind of message. Americans are growing weary of ruining the lives of harmless people for their harmless tastes, and freedom is stronger for it. The executive branch is ahead of the courts: a small majority of the public now in favor of marijuana legalization, so the Department of Justice has been hands-off with state-legal recreational marijuana markets in Colorado and Washington. The public has no strong feelings at all about online gambling, the chances of Congress passing an online poker ban like billionaire and fair-weather moralist Sheldon Adelson wants are next to zero. And the Supreme Court declined to back up the old guard because it recognizes where society is heading with regard to arbitrarily denying civil rights to anybody.
In an ideal world, all these freedoms would be unambiguously part of the law. But until they are, it’s important to acknowledge every win, regardless of how it comes about or who supports it. Whether politicians actually agree with the public or are simply afraid of being booted from office for being too closely associated with old discriminatory ways doesn’t matter. What’s important is that they make decisions that enhance freedom or, at the very least, avoid being an obstacle to it.