Many social conservatives in the United States warned that the sanctioning of gay marriage would threaten the fabric of American democracy. So far, they are right; though, gay marriage has no role in this threat. Instead, the threat to American democracy is a self-fulfilling prophesy that several conservatives are attempting to realize by rejecting the legitimacy of the US Supreme Court. Moreover, it is a threat that goes far beyond anything that has to do with gay marriage and one that requires the nation’s full attention.
The threat consists of two rejections on the part of social conservatives. The first is a refusal to obey the order issued by the Supreme Court, as is the case in Texas and has been encouraged by GOP presidential shot-in-the-darks like Mike Huckabee.
The second is a corollary of the first where some politicians claim that the US Supreme Court should be fundamentally changed. Ted Cruz, Bobby Jindal, and Steve King have all suggested this in one way or another. In short, these politicians are calling out American democracy and are saying that it is fundamentally flawed. They are saying that the forefathers, whose Constitution they claim to hold dear, were wrong.
While the American forefathers were often wrong, particularly as we evaluate their actions through the 20/20 lens of hindsight, the separation of powers in the US was not one of these errors. As frustrating as it can be, at times, to see a justice who you don’t agree with sit on the bench for upwards of thirty years, the independence of the Supreme Court from the legislative process is a protection against one of the fundamental threats of democracy: oppression of a minority by the majority of voters.
The judiciary branch is separate from the executive and legislative branches because it is not inconceivable that the elected representatives pass laws which are illegal and/or oppressive. An independent judiciary should evaluate the viability of laws (at least in theory) outside of the realm of politics, where politically salient narratives often result in poorly crafted (and uneconomical) policies, like “three-strike” laws, which were recently found unconstitutional.
Yet, social-conservative commentators have been unequivocal with their retraction of support for the judiciary and, accordingly, American democracy as we know it. This claim has many nasty consequences.
Internationally it is disastrous. If the conservatives are to be listened to, the US, which has long sought to export democracy to the rest of the world, is now facing a crisis of legitimacy. That means that the US will struggle to hold its moral perch within the realm of international politics. Such a crisis of domestic democratic legitimacy would erode the principal role that US has in the fight against ISIS and undemocratic regimes. For as hawkish as these same conservative politicians are, their attack on American legitimacy is certainly curious. Their rhetoric has real-time consequences that should not be dismissed out of hand.
Domestically potential consequences are equally scary, even if they are less likely to come to full realization. If the politicians who are exposing this anti-judiciary rhetoric are elected and implement sweeping changes, the US will face a vastly different American politicalscape, one in which those who have power will be able to hold on to it with an iron grip. Should the proposed changes to the judiciary occur, it would fundamentally change the way American democracy works. It would pull into question the continued viability of American democracy, the role of the state, and the ability to trust state actors and institutions such as police and military or the Treasury.
It is fine to say that the likelihood of that end happening is low, but it cannot be discounted. It is clear that discontent among social conservatives is high, and that discontent is unlikely to dissipate quickly. It takes little to point out the moral cries on abortion that have persisted for decades. Those who think that the tide is changing might not be right in the political sphere.
Though he did not draw the comparison, Chief Justice Roberts’s warning that the failure to obtain an elected approval from the majority of voters is one that echoes the South African experience. There, the conferral full rights of married gay people were instigated by a judicial decree from the country’s Constitutional Court which resulted in the Civil Union Act of 2006. Yet, the conservative mindset of the country hasn’t changed much.
An order of the court is not enough for anyone to be talking about love winning. It hasn’t – not yet. There is a long way to go. There is a lot of love that still needs to be built and unfortunately the foundations that those buildings need to be built on are often shaky at best. That is a long-term project.
In the short term, there must an effort to prevent this dangerous anti-judiciary narrative from taking hold. We have a responsibility to talk about the dangers it brings. There needs to be a remembrance of the authoritarian regimes that echoed these same sentiments. Failure to contest this blatantly un-American rhetoric will allow social-conservatives to sustain the resentment of gay marriage and couple it to a sustained anti-judicial rhetoric which their constituents just might be daft enough to support. If that happens, we face times ahead that indeed will fundamentally threaten the fabric of American democracy.