I’m no expert in dignity or liberty. Listening to yesterday’s arguments I frankly got confused over just where and how marriage enters into the Fourteenth Amendment and screams for resolution by the Supremes. Nationalize me, please, appears to be the new form of constitutional argument. And so now, apparently, my first son may very well be permitted to marry my second son or daughter or both, or whatever. But I what I really love are appellate lawyers’ maneuvers, such as this: Justice Alito: Well, in the Bob Jones case, the Court held that a college was not entitled to tax exempt status…
The question of whether there is a federal constitutional right to same-sex marriage is essentially a debate about whether judges need to update the Constitution to keep step with changing times. Justice Anthony Kennedy appears to be the pivotal vote on the issue. One observer yesterday summarized what he takes to be the lesson of his previous opinions on rights: Kennedy “believes that each generation has the right to conceive of newer and broader forms of liberty that merit constitutional protection. He sees history as a guide but not a straitjacket.”
There is no doubt that each generation has the right to conceive of newer and broader forms of liberty. But it does not follow that federal judges should determine what those are. As Mike Rappaport and I have noted, the Constitution accommodates social change through features other than judicial updating. The most important such method is federalism. The states themselves have few restrictions on their powers. Their experiments to address social change can be readily adopted by other states in a continental republic with a free press.
Federalism in the modern era has been a great catalyst for freedoms.
In the same-sex marriage cases both sides have enlisted foreign law in support of their position. A group of scholars led by Harold Koh argues that the recent embrace of same-sex marriage in the law of other Western nations supports finding a right to same-sex marriage in our own Constitution. Another group of scholars, led by Lynn Wardle, observes that many more nations, including in some cases their judiciaries, have declined to interpret their guarantees of equality to mandate same-sex marriage.
Originalists must generally reject the evidence of contemporary foreign law in constitutional interpretation. Such laws should not be used as authority or indeed given any weight in decision making not because they are foreign or international, but because they are contemporary and in the ordinary case shed no light on the original understanding of the Constitution.
Yesterday the Supreme Court refused to stay the lower court decision requiring recognition of same-sex marriages in Alabama. Commentators have already suggested that this refusal shows that it will decide in favor of the right when it hears and decides the case later this term.
In my view, the more interesting lens through which to view the order is the Supreme Court’s strategic manipulation of judicial process to give momentum to same-sex marriage. This momentum helps make its ultimate decision seem like a fait accompli and thus less likely to cause political backlash. The first step in this strategy was Justice Kennedy’s opinion in United States v. Windsor that had a strategic ambiguity as a matter of doctrine: whether its holding on the constitutionality of the Defense of Marriage Act (DOMA) was based on federalism or substantive rights was unclear. But the opinion did convey the clear implication that the decision to have a single federal rule on the issue was driven by animus against homosexuals. These statements made lower court judges fearful of seeming like bigots, if they rule against constitutional challenges to state laws.
When these courts ruled in favor of the challenges, after a time the Court began to refuse to stay their decisions or accept petitions from the states to overturn them. These lower court decisions then created more facts on the ground and yet more momentum for a Supreme Court decision in favor of same sex marriage on the merits.
There is a new meme circulating among journalists about the Supreme Court’s decision not to take certiorari in the same sex-marriage cases. According to the left-liberal Jeffrey Toobin, the Court’s decisions allow the “political process to go forward, one state at a time.” Or as David Brooks, a moderate conservative, said at greater length: “Sometimes, you just let the country have its way, and you don’t try to determine the shape of the country. You sort of modestly step back and let the country figure out what it believes. And I think they’re doing absolutely the right thing in just withdrawing and not getting too involved.”
Whatever one thinks of same-sex marriage (and I favor it as a policy matter), these claims completely distort the truth. The Supreme Court is letting go forward a judicial process that permits courts to invalidate traditional marriage laws if they think such a decision would best reflect the signals the Court itself has previously sent on the subject. In contrast, a political process would allow states—principally their legislatures and people—to make decisions about same-sex marriage, one state at a time.
The journalists’ claims are even more disingenuous because of the way the Supreme Court has set the stage for the lower courts.
It now often said that social movements help generate modern constitutional law. Sometimes the claim is made in defense of living constitutionalism, because, according to many scholars, the influence of social movements shows that living constitutionalism has democratic roots and does not consist of rights simply minted by judges. While it is certainly true that social movements play an important role in living constitutionalism, they do not erase its democratic deficit, let alone assure that new constitutional norms reflect the consensus that the amendment process would provide. One reason for the continuing deficit is that justices write opinions to aid some movements and not others.
A case in point is the movement for same-sex marriage.
The question of same-sex marriage has divided influential thought leaders on the “right.”
Some, like Ryan Anderson, argue that “those who defend — and live out — the truth about marriage should redouble their efforts to witness to the truth about marriage while there is still time to steer clear of that chaos.” In essence, they urge opponents to continue to advance the “conjugal view of marriage” in an effort to defeat legislative (and perhaps judicial) efforts to recognize same-sex marriage.
Others, like Rod Dreher, contend that there is “a consensus emerging on the right that the most important goal at this stage is not to stop gay marriage entirely but to secure as much liberty as possible for dissenting religious and social conservatives while there is still time.”
Even if the courts do not definitively decide the question in the next few years, those who oppose same-sex marriage on the merits face a closing window of opportunity for securing religious freedom. Given the political and judicial momentum of same-sex marriage, it is far wiser to focus on the still-achievable goal of muting the impact of marriage equality on religious freedom, before that window closes, than to continue to oppose it outright.
A lot has been said about Arizona’s SB 1062, vetoed by Arizona Gov. Brewer. Some see it as a bellwether of “growing threats to religious liberty,” others as a debate “captured by utterly intolerant people on both sides” with many seeking “liberty for me, and [to have their] opponent ground into the dust.” Marriage equality advocates see SB 1062 as, at best, a “misguided attempt to preserve an outdated social order;” at worst, a license to discriminate.
Lost in the aftermath is the fact that SB 1062 was a very different animal from the primary context in which religious liberty exemptions have emerged—namely, same-sex marriage legislation.
I was reading a discussion on a list serv that I thought would be of interest to readers. The discussion involved the injunction issued by a federal magistrate in Idaho banning the enforcement of a law against same sex marriage. I had not realized that the injunction ran against all people in the state. This appears to be problematic.
It is one of the scandals of our time that federal district courts (not to mention magistrates) issue injunctions against all people in a state when the power of the district court really only extends to the parties in the case. This is one of the ways that courts exercise unjustified power.
The courts can exercise similar power in ways that do conform to existing law. If the decision were appealed to a federal appellate court, then the circuit court decision would function as a precedent that would be binding on all district courts (and circuit court panels) within the circuit. Thus, the law of precedent would operate to bind other people in the area who were not parties to the case.
Herbert Marcuse, a man who managed somehow to reconcile revolutionary romanticism and opposition to all that exists with the cushy lifestyle of the high-profile academic, once enthused the spoiled brats of the whole Western world with his turgid prose, Teutonic pedantry, vacuous utopian abstractions, and destructive paradoxes. All that endures of his work, I suspect, is a familiar two-word phrase: repressive tolerance.