Last month’s decision by the U.S. Supreme Court that protected from prohibition by states a product of homosexual activity, same sex marriage, ended up costing the state at least $330,000 in fees it paid outside counsel for that defense; these dollars might have been lower in terms of manpower had state attorneys handled the case that Louisiana’s constitutional ban, approved by over three-quarters of voters over a decade ago, was within powers granted by the states that should not be abrogated by including practices not already listed in the Constitution as protected as in the case of free speech and religious exercise. That figure probably will end up half again higher when court costs and reimbursement of the plaintiffs’ legal fees are figured in. Ironically, because Louisiana’s case presented the best exposition against the plaintiffs’ claims, that probably increased the costs.
Of course, a half a million dollars is relative. After all, Louisiana wasted, net, around $170 million in motion picture investor tax credits in the last year for which there is calculated data, and probably will waste around $50 million this year in the earned income tax credit that discourages working to maximal effort. Still, anything is better for use than having nothing available.
True, the decision was indefensible on any but the most emotional grounds. Why should the Court grant special status to this particular manifestation of behavior, deviating from existing jurisprudence, that now opens the door, at the macro level, to the Court creating other protected classes rooted in behavioral aspects only on the basis of what seems popular and, at the micro level, from making any coherent or intellectual argument preventing polygamous, incestuous, or even (if things keep going this way) interspecies marriages? Yet the decision is the decision regardless of its merit, and so, in retrospect, ending up on the losing side costs money that could have been avoided by laying down on this issue.
But in the very not capitulating to the trendiness of the moment is where the expenditure pays off. Not in victory, but in exposition of the willingness to defend what is right, the conceptualization of American government as one that operates by rules, these found in the Constitution in a manner unambiguously enough that they illuminate the violation done to them by this decision. The Constitution tells us that states have a general police power that includes regulation of marriage, that regulation of marriage occurs through republican forms of government that include one or both of democratically-elected policy-makers and/or the people directly democratically, and that Congress and the states (through the 14th Amendment) are not specifically prohibited from regulating in a way where government treats those who practice heterosexuality differently than those who practice homosexuality, justifiably discriminating in that the state has a vested interest in encouraging heterosexual relationships as this is the only union that allows the state to perpetuate the society that allows it to govern.
The decision ignoring these facets wounded the very essence of the Constitution by violating these parts of it, and in denying their obvious existence erodes the very foundation, in the micro sense, of our specific and formal kind of government and, in the macro sense, of the larger concept of republican rule. Not to stand athwart of this notion that the Constitution may be disregarded when politically inconvenient and creates unfashionable outcomes is to collaborate in its degradation. To resist this at least minimizes, although does not reverse, the damage, for it puts on notice those who so carelessly jettison this respect for the rule of law, even if they comprise a Supreme Court majority, that what they do is neither right nor healthy to our system of government.
Accordingly, it was money very well spent. The courage to do what is right on a matter of this importance should make that endeavor priceless.