Does Court's Marriage Decision Mean Greater Individualism? How About Tolerance?

"It's worth taking a step back from the emotions and technical details of all these events," writes Walter Russell Mead, "to ask about the broader trend they point to."

Superficially, they point to a schizophrenic public: leaning pro-life; increasingly in favor of gay marriage; divided on gun control but unwilling to pull the trigger, so to speak, on significantly tightened gun laws. But on a deeper level, these all look like examples of the biggest cultural-political trend in America: a response to the growing complexity of 21st century life that revives individualism and states’ rights.

Individualism sometimes work for the Right and sometimes for the Left. The right to marry who you choose is as individualistic as insisting on your right to bear arms. With abortion, that same logic is muddier, which is why the public is still divided. Pro-choicers lay claim to the individualism mantle by stating that women should be free to control their own reproductive health, while pro-lifers do the same by arguing that abortion involves two individuals with rights, not one.

Given the nation's divisions, a future of a live-and-let-live individualism sounds appealing, but we've a long way to go to achieve it. The Left's passion for demonizing those with whom it disagrees reached new heights in Supreme Court Justice Anthony Kennedy's majority opinion in the Defense of Marriage case, when he disparaged the motives of half the nation as well as DOMA legislators. As Justice Antonin Scalia retorted in his dissent,

The Court ... accuses the Congress that enacted this law and the President who signed it of something much worse than, for example, having acted in excess of enumerated federal powers—or even having drawn distinctions that prove to be irrational. Those legal errors may be made in good faith, errors though they are. But the majority says that the supporters of this Act acted with malice—with the "purpose" (ante, at 25) "to disparage and to injure" same-sex couples. It says that the motivation for DOMA was to "demean," ibid.; to "impose inequality," ante, at 22; to "impose . . . a stigma," ante, at 21; to deny people "equal dignity," ibid.; to brand gay people as "unworthy," ante, at 23; and to "humiliate[e]" their children, ibid. (emphasis added).

I am sure these accusations are quite untrue. To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to condemn, demean, or humiliate other constitutions. To hurl such accusations so casually demeans this institution. In the majority's judgment, any resistance to its holding is beyond the pale of reasoned disagreement. To question its high-handed invalidation of the presumptively valid statute is to act (the majority is sure) with the purpose to "disparate," "injure," "degrade," "demean," and "humiliate" our fellow human beings, our fellow citizens, who are homosexual. All that, simply for supporting an Act that did not more than codify an aspect of marriage that had been unquestioned in our society for most of its existence—indeed, had been unquestioned in virtually all societies for virtually all of human history. It is one thing for a society to elect change; it is another for a court of law to impose a change by adjudging those who oppose it hostes humani generis, enemies of the human race.

Character assassination aside, Mead's vision—of a future in which the "principle of devolution" is used as a "strategy for dealing with the most politically toxic issues of our time"—is worth pondering.

America is too big and its citizens are too diverse for one-size-fits-all solutions to some of our culture war issues. Some traditional American views seem newly relevant as we cope with these issues: individuals should be allowed as much freedom as is consistent with their not harming others; wherever possible, states should be free to settle their affairs on their own terms. Some 18th-century ideas are proving surprisingly useful in 21st-century America.

We can hope.