The justices responsible for the Supreme Court’s ruling in United States v. Windsor no doubt thought they were striking a blow for human dignity. The moralistic rhetoric with which the opinion is loaded indicates as much. In an important sense, however, the decision is an attack on human dignity, or at least on the dignity of some human beings: the justices’ own fellow citizens, especially the supporters of traditional marriage. To see this, it is helpful to think about the case by way of an analogy that brings to light some of its important moral elements while bracketing the controversial question of the definition of marriage.
Here is the analogy.
Suppose you worked for a company, and that in this company the duties and rights of the employees were specified in a contract that had been the basis of the company’s operations from its founding. Suppose further that this company was rather liberal in spirit, and so the contract permitted the employees to determine, within well-defined and commonly understood limits, many of their work conditions on the basis of democratic procedures. What the majority decides in these matters is binding on all the employees.
Let us say, for example, that the employees have a right of self-government to determine the definition of their work week. The contract requires that all employees work for 40 hours per week, but the majority of employees is free to determine how to distribute the hours over the week. They may work ten hours a day for four days, or eight hours a day for five days, or five and ¾ hours a day for seven days. It is up to the workers, but whatever a majority of them decides is the policy that has to be observed by all.
From the time of the company’s founding the employees decide on a five day, eight hour per day work week. This policy stands for decades with no complaints whatsoever. Then, very late in the company’s life, the culture of the workforce changes somewhat. Some of the employees want a seven day work week. This would better suit their needs. Perhaps they have no children and the weekend is not so important to them. At any rate, this is what they want, and they argue for it to the assembly of the employees, but to no effect. They cannot secure a majority for the policy they desire.
Rather than continuing to press their argument in the hope of convincing a majority of their fellow workers to their way of thinking, they file a grievance with the company’s management, claiming that the rest of the employees are treating them unfairly. To conclude the analogy, suppose that the company’s management, which has authority under the contract to settle such disputes agreeably to the terms of the contract, decides in favor of the aggrieved minority and against the will of the majority as expressed in the policies it has enacted by democratic procedures established in the contract.
In its memorandum announcing its decision, however, the management cannot point to any specific provision of the contract that is actually violated by the democratically-enacted policy. The management complains vaguely that the majority has violated the company’s commitment to equal treatment under the company’s rules. But that principle had always been understood to mean that the rules must be applied equally to everybody, not that they must equally reflect everybody’s desires.
The reader has no doubt discerned by now the intention of this analogy. The company represents America, the contract the Constitution, the workers our citizens, and the aggrieved minority those who desire same-sex marriage. To bring to light the aforementioned moral problem with the Court’s behavior in the Windsor case, let us proceed to ask some questions about the effects of the management’s decision.
How would you feel if you were a member of the majority of employees who had voted for the policy that was overturned? Certainly you would feel dissatisfaction that the policy you thought best was being replaced by another less to your liking. This dissatisfaction, however, surely would not exhaust the negative feelings that would arise in reaction to the management’s verdict. You would also have to feel that you had been duped. After all, you were told that the contract permitted you to decide these matters, only to be told later that it really didn’t. Indeed, the contract on its face permits you to decide these matters, yet the management now tells you that you can’t. And again, while announcing with complete certitude that you had violated the contract, the management cannot not point to specific rules that you have violated.
Not to put too fine a point on it, you might think that you had been lied to. Lying, however, is ordinarily an attack on the dignity of the victim of the lie. It places him in a fundamentally unequal position in relation to the person telling the lie. It treats him not as a reasonable being but as an object of manipulation. This, I would suggest, is just what the Supreme Court has done to those Americans who believe in traditional marriage and who have voted in support of it. It has told them that they, in their capacity as citizens of the United States, have no authority to define marriage as they think best. It has told them that the Constitution forbids this—even though it says not a word on the subject and has never until now been thought to constrain the majority’s judgment on this question at all.
Of course, this is rather strong. Defenders of the Court will no doubt say that the Windsor majority do not deserve this criticism. Their ruling is presented as an interpretation of the Constitution. Interpretations are often arguable, and so it would be more charitable to say they are, at worst, mistaken, rather than that they are guilty of dishonest manipulation and degradation of their fellow citizens. This is somewhat reasonable.
Nevertheless, consider what the Court has done in Windsor. It has put forward a claim—that the federal government must recognize same-sex marriages—that is utterly unpersuasive to those who oppose it, and even to those who have no interest in the question of same-sex marriage. In other words—and this is a point I wished to make by means of the analogy, which presents essentially the same issues, but without involving the particular substantive question of the definition of marriage—nobody who did not already hold a moral belief in the rightness of same-sex marriage would be persuaded by the Court’s constitutional argument for the right. Yet the Court pretends that its intrusion into this question is required by the document that is supposed to be the legal, objective common ground between those who have a moral disagreement about the definition of marriage—even though that document says nothing about the question of marriage. If this is not lying, it is at least a form of verbal manipulation that would leave a reasonable person thinking that he had been the victim of power and not honest persuasion. For the Court to say that the federal government must recognize same-sex marriages because the Court thinks that would be best would be an abuse of the judicial power. But for it to say that this must be so, and to insist that it has an objective justification for this demand—to claim that the Constitution in fact requires this outcome, despite its total silence on the question— is an abuse of the judicial power and a form of dishonesty that degrades and humiliates the nation on which it is foisted.
There is an old expression that brings to light the problem for human dignity that is created by a decision like that in Windsor v. United States: an “outrage on one’s understanding.” One can find variants of this expression in the writers of the founding generation. Our contemporary, more familiar equivalent is “an insult to my intelligence.” Both of these expressions give voice to the conviction, deeply rooted in our moral sense, that when someone puts forth to us a transparently unconvincing argument, and acts as if we ought to be governed by it, that person is treating us as objects of manipulation, insulting us, denying our dignity as rational beings.
Of course, one might venture another defense of the Court: it cannot really be said to be acting dishonestly, because the justices really believe that they have the authority to introduce new meanings into the Constitution, irrespective of its text and history, and irrespective of what the people think. It is no doubt true that many of the justices of the Court do sincerely hold this view. But if they do, it does not solve the problem of dishonesty and manipulation. It just moves it to another level. For if the justices really do have this power, then the idea that we are living under a Constitution, or under the rule of law binding on the government and the governed alike, is just an illusion. If the justices may act as they acted in Windsor then we are really living a lie in thinking that we live under a Constitution—just as much as we would be doing so if we claimed to work under a contract that management claimed a right to interpret in unheard of ways according to its own will.
To put it simply and starkly: it is bad enough to be ruled despotically, but it is beyond endurance to be ruled despotically by rulers who tell you that you are being ruled by law. This, as the old saying has it, adds insult to injury.
The problem goes even deeper than this. Let us return for a moment to our analogy of the company. Suppose that in resolving the grievance, the management not only voided the rule that the employees had made. Suppose that it went further an told them that the only basis for the rule they had created was their hatred for some of their fellow employees, their animus against them and their desire to degrade them. Suppose further that they said this despite the majority’s repeated denials that this way the case, and its diligent efforts to explain its policy as based on considerations of the common good of the whole workforce.
A management that behaved in this way would be dangerously close to both lying about the requirements of the contract, while at the same time telling the employees that they were lying about their own motivations. At the very least management would be telling the employees that it understands their motivations better than they do themselves, that they cannot be trusted to understand or to speak their own true motives. All of this is incompatible with the respect that is required among equal persons. But this is precisely what the Supreme Court has done in the Windsor decision.
In the Windsor decision the Court set out to defend the dignity of homosexuals, which it perceived, rightly or wrongly, to be under attack. In the process it certainly disparaged the dignity of all Americans who support the traditional definition of marriage. For it told them they may not lawfully do so, without any argument that could persuade a disinterested person. It put forth the show of an argument, while really relying on its power for the efficacy of its ruling. And on top of this it told such Americans that their motives are disreputable. Such a ruling is not just an error but an offense against the dignity of many Americans, who should see it as such.