Part 2 of the series, "The Structure of Lies in Conservative Jurisprudence".
On his Mythic America blog, religious studies historian Ira Chernus—whose son is gay and married—has a typically insightful post, On DOMA, Right-Wing Justices Got It Right — And Wrong. In it, he tackles two main dynamics: the relationship between conservatism and bigotry, and the relationship between two different modalities of conservatism, one typified by Justice Kennedy's opinion striking down DOMA, and the other typified by the conservative dissenters. This piece represents an ideal stepping-off point for the series that follows, because it helps clarify the origin point—or perhaps “fissure” is a better term—of where all the troubles I'll be discussing can be traced back to.
Chernus starts with Antonin Scalia's dissent in Windsor, which he rightly notes “fairly screams: I’m not a bigot. I’m not. I’m not,” and goes on to say:
We liberals sort of take it for granted that bigots will be conservatives, and that conservatives are more likely to be bigots. But we all too rarely ask why that should be.
Scalia offers a glimpse of an answer here: It’s not that we have some kind of blind, irrational bias against certain groups of people, he argues. We merely want to keep up patterns of thought and behavior that have “been unquestioned in our society for most of its existence.” We want to conserve. Why do you think they call us conservatives?
Scalia’s partner in conservatism, Samuel Alito, agrees emphatically in his dissent.... It is beyond dispute that the right to same-sex marriage is not deeply rooted in this Nation’s history and tradition. … Nor is the right to same-sex marriage deeply rooted in the traditions of other nations.” So how can it be a fundamental right?
In other words, if you ain’t doin’ what we’ve always done, you ain’t got no right to be doin’ it — at least no legal right protected by the Constitution.
That last line is a pretty neat summary of conservatism. It's what they call "ordered liberty", and slavery used to be an integral part of it. Forced childbirth still is. Moving on: