Thursday, November 13, 2014

The Undemocratic Future of the Marriage Issue

I want to start by thanking the Louisville Association of Women’s Attorneys for sponsoring this discussion. I also want to thank Justice Heyburn for allowing me to participate.

The Undemocratic Future of the Marriage Issue 
My connection with the law here in Kentucky is that it was based on language I had written on a little yellow slip of paper and walked into State Sen. Vernie McGaha’s office at the State Capitol in the spring of 2004, language which was drafted, introduced, approved by elected members of both chambers of our state legislature, and placed on the ballot, where it received more “Yes” votes than received “Yes” and “No” votes on any Constitutional amendment before or since.

It is language that is still supported by a majority of Kentuckians even today.

This law has a very democratic past, but it faces a very undemocratic future—a future, of course, that is already upon us.

This law, which simply codified in state law the understanding of everyone, male and female, child and adult, whites and people of color, upper and lower classes, straight and gay, for all of recorded history until about 15 or 20 years ago, will be decided by one unelected judge: United States Supreme Court Justice Anthony Kennedy.

So, as we all loiter about the outer courts, awaiting the pronouncement of the Supreme Court Oracles, I hope you will allow me, as a layman, a few impressionistic observations after witnessing the events of the last year and after having reviewed the various court decisions which have been handed down to us.

What is This Debate About? 
First of all, what is this debate about? As Ryan Anderson has observed and as U.S. Supreme Court Justice Samuel Alito remarked in his dissent in the Windsor decision: The debate over same-sex marriage is a contest between two competing definitions of marriage.

The first understanding is the” traditional” or “conjugal” view. It holds that marriage is “the solemnizing of a comprehensive, exclusive, permanent union that is intrinsically ordered to producing new life, even if it does not always do so.” It is, therefore, an “intrinsically opposite-sex institution.”

The second understanding is the “consensual” view, which holds that marriage is the “solemnizing of mutual commitment—marked by strong emotional attachment and sexual attraction between persons.”

The first view has been the view of everyone, male or female, child or adult, in every social class in every culture in every historical period but our own. There was no one—and that includes gays—who did not universally believe this until about 20 years ago.

What has happened in the courts is that the second view has been assumed—without acknowledgment and without argument. It is not a claim to be analyzed, but an axiom to be postulated. And it is for this reason that they have ruled that laws founded upon the first, traditional view are not just incorrect, but wholly impermissible. As conducted by the courts therefore, there is no real debate about this issue. It was settled before any argument was ever made in a courtroom.

And this is why what is really a conflict of values which would more appropriately be resolved in the normal democratic process is cast as a mere matter of legal procedure to be resolved by applying certain ostensibly neutral principles. This manner of hiding substantive moral judgments in procedural clothing produces curious grammatical constructions such as "substantive due process," a formulation which attempts somewhat to square a circle, since something cannot be both substantive and substantively neutral.

Tradition for Me, but Not for Thee
Second, I think the attempt to hide this substantive assumption in a procedural guise produces other irregularities. One of the things that advocates of traditional marriage are told is that the fact that traditional marriage is traditional and therefore due some kind of deference is irrelevant. Tradition doesn’t count as a sufficient reason for a law.

Now it is an interesting thing to be told that mere tradition is an irrelevant consideration by people who spend half their lives in the monastic practice of blowing the dust off of old volumes in order to see what their predecessors have said (or doing a Lexis search, as the case may be). In fact, most reasoning in most legal decisions is based on legal tradition.

It is what we call “precedent.”

There is no more bedrock assumption in the law. So, in the case of marriage, the question becomes: Why are judges not only allowed, but in many cases beholden to follow tradition, but the wider culture, in making its laws, is not only not beholden to follow tradition, but not allowed to?

Why is tradition a valid justification for judges to rule, but not for the rest of us to legislate?

In the law, precedent is controlling—except when it’s not. When the issue is abortion, we are forced to sit in the political pews in order that we may benefit from long, tiresome sermons about its importance. But when it comes to same-sex marriage, the sermon topic suddenly changes from the importance of precedent to the necessity of something called doctrinal development?

Roe v. Wade (pro-abortion precedent) is controlling; Baker v. Nelson (pro-traditional marriage) is not. Abortion decisions must be upheld because of precedent; marriage decisions must be overturned despite it.

In issues that militate in one direction, the rule is stare decisis—standing on prior decisions; on issue that militate the other, the rule is fugare decisis—fleeing from prior decisions.

Now the interesting thing about this “doctrinal development”—and “doctrinal” is a good word for it— is that it only goes in one direction: It always moves in the direction of one political side and against the other.

“Emanations from penumbra” always seem to grow in the leftward direction.

Morality and Religion
This is related to another assumption, hidden as it is under doctrinal developments and rational basis tests, and substantive due processes, that manifests itself in the anathema, not only on tradition as a rationale for legislation, but also any appeal to morality and religion, which, like tradition, have long been seen as legitimate reasons for a law, as Justice Scalia pointed out his dissent in Lawrence v. Texas.

There is no shortage of laws that impose restrictions based on moral approbation. From incest to prostitution to bestiality, to public nudity--law after law derives its justification from moral authority. In fact, every law—every single solitary one of them—is the imposition in statute and regulation of someone’s morality. Every law requires us to do what we should do or prohibits us from doing what we should not do.

Every single one of them.

The courts that today tell us that a law cannot be justified by moral belief did not question the moral rationale behind the Civil Rights Act, and no one questioned the explicitly religious reasons given for it by Martin Luther King, Jr.

And that’s a good thing.

It is interesting that, while motivations grounded in religion and traditional morality are insufficient to support a law, but they are considered sufficient to prove animus--at least according to Justice Anthony Kennedy in the Windsor decision.

Conservatives Go the Back of the Bus
This low esteem in which the Magisterium of the courts now holds custom, traditional morality, and religion has an interesting and culturally mischievous effect. These things, as it turns out, are the reasons conservatives support or oppose things. Conservatives are Burkean in this sense. Just as individual will, social justice, and liberty of sexual preference are reasons for political liberals to support and oppose what they do, since liberals are largely Hobbesian.

In favoring Hobbes over Burke (once again, without acknowledgment or argument), what the courts have done is to rule out conservative reasons for laws, while allowing liberal reasons for them. It is an inequity of outcome that we lament in other areas of the law.

It creates a rather hard row to hoe for those in our society who do not ascribe to the values of the judicial and secular elite, an elite which now proposes to dictate what voter motivations are permissible and impermissible.

The courts have taken it upon themselves to be the arbiters not just of what does or doesn’t comfort to statute case law, but of what counts as rational. It has deemed that the only reasons anyone could believe that traditional marriage to be a good thing warranting the government’s support are not reasons at all. By definition.

There are many people who, for various reasons, think that, on the whole, the best place for children in our society to grow up is in a home with their natural mother and father and that it is good for the government to encourage it. But we are now told that, on the basis of a test they have for rationality, that this belief fails. It not only is not rational, it is not even conceivably rational.

I would submit that any test that finds this common sense belief—one adhered to by roughly half of our population and by most people on this planet—to be not even conceivably rational is itself inconceivably irrational.

Four things that must be believed to make the 14th Amendment Argument
Finally, I know that there are some who would say, well, this is all beside the point. Because there is the 14th Amendment “due process clause” (note the absence of the word “substantive”) and the “equal protection” clause.

If we follow current legal doctrine (which will undoubtedly be developing any moment now) and we go through all the steps of the process of applying these two amendments, what we end up with is four assertions which must be accepted in order to justify recent rulings striking down marriage laws.

The first, as Justice Alito pointed out in his dissent in Windsor, is that same-sex marriage is “deeply rooted in this nation’s history and tradition.” The interesting thing about this is that no judege has seriously tried to argue for this belief even though courts have found that it is a sine qua non for any newly-minted "fundamental right." It is fairly clear that it is historically untenable.

The second is that same-sex marriage is “implicit in the concept of ordered liberty.” This is another requirement for finding that an unenumerated right is fundamental that same-sex advocates never even attempt to argue for, largely because it is clearly untrue.

The third is that homosexuality is an immutable characteristic. This is believed largely because of the frequency with which it is repeated, rather than by evidence and it is interesting that it is controversial even among gay scholars, most of whom are contructivists who don't believe anything is immutable. But perhaps the best thing to say for the moment is what Stanley Fish has said which is that "feng shui is a rock hard science compared to judges who try to practice psychology.”

The fourth is that gays are “politically powerless.” It is hard to know exactly how to respond to a judge who claims this beyond suggesting that he ought to get out more.

Again, one must believe all of these things in order for the argument that same-sex marriage is derivable from the 14th amendment.

Although I question the reasoning that has been used in these decisions, I don’t question the motives of judges who have made them. We all have our views of what is right and wrong. But to short circuit the process by which we resolve these issues by allowing one small group of elites the right to make these decisions for us is not the answer.

It is nice that we are all here today discussing this issue, but the fact is that nothing we say here today and nothing that has been said even by judges who have ruled on this issue will have as much influence on the outcome of this issue as what Anthony Kennedy has for breakfast on the morning he dons his Supreme Court robes and goes to write his decision (he is the swing vote on the court).

My favorite statement concerning the role of judges in issues like this is found in Alan Paton’s great book about Apartheid in South Africa: Cry, The Beloved Country. There, in a country ravaged by far worse problems than those we think so important in America today, he talks of the respect both Blacks and Whites have for South African judges--judges who do not make law, but only interpret it.

In the great scene in which the judge announces his decision near the end of the book, he says,
[I]t is one of the most monumental achievements of this defective society that it has made a law, and has set judges to administer it, and has freed those judges from any obligation whatsoever but to administer the law. But a judge may not trifle with the Law because the society is defective. If the law is the law of a society that some feel to be unjust, it is the law and the society that must be changed … And the fact that he is left free to administer it must be counted as righteousness in a society that may in other respects not be righteous … I am only pointing out that Judge cannot, must not, dare not allow the existing defects of society to influence to do anything but administer the law.
Thank you.

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