Yesterday, the United States Supreme Court refused to take up an appeal of a lower-court ruling that declared Oklahoma's same-sex marriage ban unconstitutional. This paved the way for same-sex marriage here in Oklahoma. It was a joyful day for many couples, including a number of friends of mine, who suddenly had a right they'd been denied their entire lives: the right to marry the person they love in their home state.
In other words, for the first time in their lives, gay and lesbian Oklahomans found themselves free from the systemic legal discrimination that Oklahoma has enforced for its entire history (even writing it into its constitution in 2004).
And while friends of mine cheered and cried in joy, while many rushed off to get their marriage licenses and lined up in churches and courthouses to finally receive the legal recognition they'd always been denied, the Governor of our state, Mary Fallin, issued a public statement condemning the decision and its implications.
Earlier today, one of my friends said how grateful he is that his belief system doesn't force him "to stand against love and commitment." Apparently, Mary Fallin's belief system does. For this, I pity her. Consider how hard it must be to be forced by your beliefs to utter words of outrage and condemnation in the face of the joy and tears and hugs of people who love one another, who finally are free to express their love and commitment in the public way that the state has always made available--for everyone but them.
How sad it must be, to feel obligated to throw wet towels on love and laughter.
Here is the wet towel she threw:
"The people of Oklahoma have the right to determine how marriage is defined. In 2004, Oklahomans exercised that right, voting by a margin of 3-1 to define marriage as the union of one man and one woman.
"The will of the people has now been overridden by unelected federal justices, accountable to no one. That is both undemocratic and a violation of states' rights. Rather than allowing states to make their own policies that reflect the values and views of their residents, federal judges have inserted themselves into a state issue to pursue their own agendas.
"Today's decision has been cast by the media as a victory for gay rights. What has been ignored, however, is the right of Oklahomans – and Americans in every state – to write their own laws and govern themselves as they see fit. Those rights have once again been trampled by an arrogant, out-of -control federal government that wants to substitute Oklahoma values with Washington, D.C. values."
Fortunately, as wet towels go, this statement wasn't very wet--and it didn't have much effect on the celebrants.
Let's briefly consider the details of Mary Fallin's claims. As she sees it, Oklahoma should be free to continue to practice marriage discrimination against its gay and lesbian citizens, in defiance of the court ruling that doing so violates the Equal Protection Clause of the 14th Amendment of the US Constitution.
She thinks it is the right of the people of Oklahoma, if the majority so chooses, to systematically exclude a portion of its population from access to the social goods of marriage. For her, this is a matter of "state's rights" and "democracy." Put simply, she thinks it is the right of the majority of the state to exclude select minorities from equal access to legally-conferred social goods, if that so happens to be in line with the majority's values.
But we live in a republic where democratic rule is not absolute. It is not absolute because the founders of this country recognized the importance of protecting individuals and minority groups from a distinct danger: the tyranny of the majority. What the majority of a state has the right to do is and has always been constrained by considerations of individual rights and the obligation of the government to preserve equality and liberty in the face of majorities that sometimes don't care about these things.
The question, then, is this: Does the majority in Oklahoma have the right to systematically exclude persons with a homosexual orientation from access to a valuable social good that the state provides to persons with a heterosexual orientation--namely, marital recognition for their intimate partnerships (and the attendant legal rights and protections).
Put another way, do the people of Oklahoma have the right to legally discriminate against gays and lesbians when it comes to marriage? (For those who are under the impression that there is no legal discrimination going on, see here).
This amounts to a question of justification. Legal discrimination can, in some cases, be justified. For example, the state can justifiably exclude the blind from access to driver's licenses. But legal discrimination is the kind of thing that requires justification. Absent a compelling state interest, legal discrimination violates both the political philosophy on which this country was built and the founding documents that express that philosophy.
The federal courts ruled, in effect, that the State of Oklahoma failed to meet this burden when it comes to its same-sex marriage ban. Hence, the ban was declared an unconstitutional infringement on the rights of persons to receive equal treatment under the law.
In the face of this, does Mary Fallin explain what she thinks is wrong with the federal court rulings? Does she build the case that legal discrimination is justified in this case?
She mentions the values of the people of Oklahoma, as if this were a sufficient basis for justifying the ban. But "majority values" in a state are precisely the sorts of things that cannot, by themselves, justify discriminatory treatment under the law. "Majority values" supported Jim Crow laws in most southern states. The majority can be wrong, its values unjust. If laws are discriminatory, then majority values have to give way. The alternative is to open the door to the untrammeled tyranny of the majority.
If the federal courts made a mistake, then we need to look at where the mistake lies, by looking at the substance of the court arguments. Does Fallin do this?
No. Instead, she throws a red herring. She asserts that the federal judges in question here--who were duly appointed according to the procedures written into federal law--are "unelected" and "accountable to no one." This sounds like she disapproves of the federal judicial system in this country, and thinks it should be radically restructured.
But even if she's right--even if there are good reasons to be unhappy with the design of our federal judicial system--why is that relevant in this case? Does she think the purported flaws in the federal judicial system have compromised the soundness of the ruling against Oklahoma's same-sex marriage ban? If so, she needs to show that this is so. Simply calling the federal judges "arrogant" and "out-of-control" shows us nothing--except that Mary Fallin can fling put-downs.
If you want to show that a flaw in the federal judicial system has compromised one of its rulings, you show this by, first of all, showing that the ruling is unsound. She makes no effort whatsoever to do that. Hence, her vague unhappiness with the way that federal judges get their positions is nothing but irrelevant distraction.
Think of it this way: Our judicial system is at the front lines of our nation's founding commitment to ensure that legal discrimination is not taking place, or when it is, that there is a sufficiently compelling reason for it. Given this fact, Oklahoma's same-sex marriage ban is clearly suspect. A court ruling against it sounds quite reasonable. If Fallin thinks that, despite this, the ruling is wrong, she needs to dig into the substance of the arguments and identify the flaws. Vague complaints and put-downs simply won't do.
What we have here is a fallacy taught in most freshman-level critical thinking classes: the ad hominem fallacy, which is roughly the mistake of attacking a person instead of their views and arguments. Instead of speaking to the substance of the federal rulings, Mary Fallin calls the judges names while vaguely deriding the system that put them in office.
We deserve better than freshman-level logical fallacies from out governor. Really, we do. Until we get it, those who are enjoying their new-found freedom to marry should treat Mary Fallin's statement for what it is: not so much a wet towel as a dirty dishrag.